Cf  C.  Langdell 


HISTORY 


OF   THE 


HARVARD  LAW  SCHOOL 

AND    OF 

EARLY   LEGAL  CONDITIONS 
IN   AMERICA 


$j$$$ 

IL 


By 
CHARLES   WARREN 

OF  THE  SUFFOLK  BAR 


VOLUME  II. 

ILLUSTRATED 


NEW    YORK 
LEWIS    PUBLISHING    COMPANY 

1908 


Copyright,  1908, 

by 
CHARLES   WARREN. 


Table  of  Contents 

Chapter  XXV. — The  Story-Greenleaf  Period  1837-1845. , . .  I 

Chapter  XXVI. — Reminiscences  of  Story 47 

Chapter  XXVII.-— The  Moot  Courts 70 

Chapter  XXVIIL— The   Library    1833-1845 77 

Chapter  XXIX. — Courses,  Growth  and  Finances  1833-1845  84 

Chapter  XXX. — The  Transition  Period  1845-1850 95 

Chapter  XXXI. — The  Era  of  Railroad  and  Corporation  Law  133 

Chapter  XXXII.— The  Anti-Slavery  Period  1 156 

Chapter  XXXIII.— The  Anti-Slavery  Period  II 187 

Chapter  XXXIV. — The  Federal  Bar  and  Law  1830-1860..  225 

Chapter  XXXV. — New  Law  1830-1860 234 

Chapter  XXXVL— The  War  Period  1860-1869 262 

Chapter  XXXVII. — Parker,  Parsons  and  Washburn 302 

Chapter  XXXVIII.— The  Marshall  and  other  Law  Clubs..  319 

Chapter  XXXIX.— The  Law  Library  1845-1869 332 

Chapter  XL. — Instruction  and  Finances  1845-1869 342 

Chapter  XLI. — Eliot  and  Langdell 354 

Chapter  XLI  I.— The  Trial  Period  1871-1881 379 

Chapter  XLIII. — What  the  Case  System  Really  Is 419 

Chapter  XLI V.— The   Langdell    Period    1882-1895 428 

Chapter  XLV. — Langdell  as  a  Teacher 454 

Chapter  XLVI. — The  Ames  Period 461 

Chapter  XLVIL— The  Library  1869-1907 483 

Chapter  XLVIII. — Influence  of  the  School  and  of  the  Case 

System   496 

Appendix  I. — Appointment  of  Professors 515 

Appendix  II. — Law  School  Students  of  1862 517 

Appendix  III. — The  Law  School  in  the  Spanish  War 519 

Appendix  IV. — Conditions  1870-1907  520 

Appendix  V. — Harvard  Law  Association 538 

Appendix  VI. — The  Harvard  Law  School  Association....  545 


Illustrations 

PAGE 

C.   C.  Langdell Frontispiece 

Joseph  Story 32 

Joseph  Story 46 

Dane   Hall,    1845-1871 62 

William  Kent  98 

Henry  Wheaton  in 

Joel  Parker  1 16 

Rufus  Choate  • 122 

Franklin  Dexter  129 

Luther  S.   Gushing 132 

Edward  Greely  Loring 196 

Emory  Washburn 202 

Dane  Hall  Lecture  Room 216 

Five    Harvard    Presidents 268 

Theophilus  Parsons 282 

Richard  H.  Dana 289 

Nathaniel  Holmes   296 

Emory  Washburn    314 

Superior  Court  of  the  Pow  Wow,  1873 321 

Choate  Chapter,  Phi  Delta  Phi 331 

Dane  Hall  Library 338 

Fac-simile,  Certificate  by  Parker  and  Parsons 346 

Benjamin  R.  Curtis 386 

Charles  S.   Bradley 403 

Austin  Hall 432 

Harvard  Law  Review 440 

Austin  Hall,  View  of  Corridor 452 

Austin  Hall,  North  Lecture  Room 462 

Proposed  New  Building,  Langdell  Hall 480 

Austin  Hall,  Library  Reading  Room 488 


CHAPTER  XXV. 
THE  STORY-GREENLEAF  PERIOD — 1837-1845. 

This  year  1837  was  marked  by  the  decision  in  two  other  cases 
in  the  United  States  Supreme  Court,  which  denoted  the  change 
in  its  attitude  from  the  days  of  Marshall. 

In  Mayor  of  the  City  of  New  York  v.  Miln  (n  Peters  62), 
argued  by  D.  B.  Ogden  against  Walter  Jones,  a  New  York 
statute  relative  to  the  duty  of  masters  of  vessels  to  report  all 
passengers  arriving,  was  held  constitutional,  as  not  being  a  regula- 
tion of  interstate  commerce.  In  Briscoe  v.  Bank  of  the  Common- 
wealth of  Kentucky  (u  Peters  257),  argued  by  White  and 
Southard  against  Henry  Clay  and  Benjamin  Hardin,  the  Court 
reached  a  conclusion  upholding  the  State  statute,  directly  in  con- 
flict with  Marshall's  opinion  in  Craig  v.  Missouri  (4  Peters  410), 
decided  in  1830.  Both  these  cases,  like  the  Charles  River  Bridge 
Case,  had  been  previously  argued  during  Marshall's  lifetime;  and 
Story  in  his  dissenting  opinion  in  both  cases,  referred  to  the  fact 
that  Marshall  agreed  with  him  in  believing  the  statutes  involved 
to  be  unconstitutional.  So  great  was  Story's  despondency  over 
the  new  trend  of  the  Court  under  Taney,  that  in  a  letter  to  Judge 
McLean,  May  10,  1837,  he  said : 

The  opinion  delivered  by  the  Chief  Justice  in  the  Bridge  Case 
has  not  been  deemed  satisfactory;  and,  indeed,  I  think  I  may  say 
that  a  great  majority  of  our  ablest  lawyers  are  against  the  decision 
of  the  Court;  and  those  who  think  otherwise  are  not  content 
with  the  views  taken  by  the  Chief  Justice. 

There  will  not,  I  fear,  ever  in  our  day,  be  any  case  in  which 
a  law  of  a  State  or  of  Congress  will  be  declared  unconstitutional ; 
for  the  old  constitutional  doctrines  are  fast  fading  away,  and  a 
change  has  come  over  the  public  mind,  from  which  I  augur  little 
good.  Indeed,  on  my  return  home,  I  came  to  the  conclusion  to 
resign. 

A  writer  in  the  North  American  Review  in  1838,  also  uttered 
the  same  doleful  forebodings  in  reviewing  volume  eleven  of 
Peters  Reports (i)  : 

(i)  See  Constitutional  Law,  a  Review  of  II  Peters  in  North  Amer. 
Rev.,  Vol.  XLVI  (Jan.  1838). 


2  HARVARD  LAW  SCHOOL. 

The  volume  is  one  of  unusual  and  in  certain  respects  even  of 
singular  interest.  ...  It  can  hardly  have  failed  to  strike 
the  dullest  observation  after  a  survey  of  the  present  volume,  that 
some  considerable  change  has  come  over  the  spirit  of  our  Su- 
preme National  Judicature  upon  this  great  class  of  (constitu- 
tional) questions.  .  .  .  The  prospect  is  charged,  perhaps  to 
our  too  anxious  apprehension,  with  shades  which  have  not  hither- 
to seemed  to  rest  upon  it  ...  under  the  shape,  not  to  say 
pretext,  of  internal  regulations  of  police  of  the  protective  kind 
on  the  maritime  side  of  commercial  States.  .  .  . 

Massachusetts  also,  we  are  sorry  to  say,  furnished  her  con- 
tribution to  swell  the  present  volume.  We  say  this  with  sorrow, 
because  whatever  may  be  thought  of  the  merits  of  the  question, 
it  is  undeniable  that  the  tone  and  character  of  the  decision  chime 
in  with  doctrines  which  tend,  or  may  be  urged,  deplorably,  to  the 
subversion  of  the  principles  of  law  and  property. 

What  was  the  law  of  the  Court  upon  some  important  points 
remains  so  no  longer.  Within  a  brief  space  we  have  seen  the 
highest  judicial  corps  of  the  Union  wheel  about  in  almost  solid 
column  and  retread  some  of  its  most  important  steps. 

It  is  quite  obvious  that  old  things  are  passing  away.  The  au- 
thority of  former  decisions  which  had  long  been  set  as  land- 
marks in  the  law,  is  assailed  and  overthrown  by  a  steady,  destruc- 
tive aim  from  the  summit  of  that  stronghold,  within  which  they 
had  been  entrenched  and  established. 

.  .  .  .  It  is  very  remarkable  also  that  all  the  principles 
yielded  by  these  decisions  either  have  relation  to  the  sovereign 
powers  of  the  Union  or  to  the  very  essence  of  social  obliga- 
tion. .  .  .  We  can  hardly  avoid  the  reluctant  impression  that 
it  (the  judiciary)  has  already  capitulated  to  the  spirit  of  the  old 
confederation ;  and  that  we  are  fast  returning,  among  other 
things,  to  an  old  continental  currency,  and  to  what  were  once 
denominated,  moreover,  anti- federal  doctrines. 

Under  the  progressive  genius  of  this  new  judicial  administra- 
tion we  can  see  the  whole  fair  system  of  the  Constitution  be- 
ginning to  dissolve  like  the  baseless  fabric  of  a  vision. 

The  year  1837-38  at  the  Law  School  began  with  62  students 
from  15  States;  from  Massachusetts  26;  from  Louisiana  6; 
from  South  Carolina  4 ;  from  Maine,  New  York,  Maryland,  Vir- 
ginia, Kentucky,  3  each;  from  New  Hampshire,  Rhode  Island, 
Connecticut,  Georgia,  Mississippi,  Tennessee,  2  each ;  from  Ohio 
i.  This  was  the  first  year  of  Van  Buren's  administration  and  of 
the  great  commercial  panic ;  and  the  consequent  financial  distress 
undoubtedly  had  its  effect  on  the  attendance  at  the  School. 

Henry  Wadsworth  Longfellow  entered  upon  his  Professorship 
of  French,  Spanish  and  Belle  Lettres,  at  this  time ;  and  for  many 


STORY— GREENLEAF  PERIOD.  3 

years  his  lectures  were  eagerly  attended  by  the  law  students, 
many  of  whom  came  into  intimate  and  personal  acquaintance 
with  the  poet.(i) 

In  the  class  entering  in  the  fall  of  1837,  the  most  prominent 
student  was  Richard  Henry  Dana,  Jr.,  then  just  home  from  his 
Two  Years  Before  the  Mast  voyage.  Of  his  Law  School  days 
(1837-40),  Dana  wrote  later(2)  : 

Free  from  all  the  details,  chicanery  and  responsibilities  of 
practice,  we  were  placed  in  a  library  under  learned,  honorable 
and  gentlemanly  instructors,  and  invited  to  pursue  the  study  of 
jurisprudence  as  a  system  of  philosophy.  From  the  first  recita- 
tion it  became  exceedingly  interesting  to  me,  and  I  have  never 
yet  found  it  dry  or  irksome. 

The  School  was  now  "in  full  blast",  as  Story  expressed  it,  and 
the  mass  of  work  upon  his  shoulders  almost  overwhelmed  him, 
so  that  he  wrote : 

The  Circuit  Court  has  been  constantly  in  session  and  I  have 
been  compelled  to  be  there.  There  are  nearly  70  law  students, 
and  every  day  that  I  could  command  any  leisure  I  have  been 
obliged  to  give  them  lectures.  My  work  on  Equity  Pleadings  is 
in  press,  and  one-third  of  it  remains  to  be  written  before  I  go 
to  Washington.  ...  I  fear  my  own  health  will  not  stand 
such  various  efforts  of  duty. 

In  the  spring  of  1838,  his  Equity  Pleadings  was  published,  dedi- 
cated to  Jeremiah  Mason.  At  the  same  time  he  was  keeping  close 
track  of  the  English  cases,  books  and  judges,  through  a  volumin- 
ous correspondence  with  Charles  Sumner,  who  was  then  in  Lon- 
don. 


(1)  Longfellow  at  this  time  was  a  young  man  of  30  years,  very  fond 
of  gay  attire,  especially  waistcoats,  and  when  he  went  to  engage  rooms 
was  mistaken  for  a  student,  as  he  records  in  his  diary,  May  25,  1837 : 

"The  first  time  I  was  in  the  Craigie  House  was  on  a  beautiful  summer 
afternoon  in  the  year  1837.  I  came  to  see  Mr.  McLane,  a  law  student,  who 
occupied  the  southeastern  chamber.  .  .  .  McLane  left  Cambridge  in 
August  and  I  took  possession  of  his  room,  making  use  of  it  as  a  library  or 
study,  and  having  the  adjoining  chamber.  At  first  Mrs.  Craigie  declined 
to  let  me  have  rooms.  She  had  resolved,  she  said,  to  take  no  more 
students  into  the  house.  But  her  manner  changed  when  I  told  her  who 
I  was."  In  his  diary,  April  3,  1840,  he  records : 

"There  is  one  law  student  who  comes  in  occasionally  to  my  class.  I 
always  lecture  better  when  he  is  there.  This  shows  how  much  depends 
upon  the  audience." 

See  Life  of  H.  W.  Longfellow,  by  Samuel  Longfellow. 

(2)  Richard  Henry  Dana,  by  Charles  Francis  Adams    (1890). 


4  HARVARD  LAW  SCHOOL. 

The  relations  of  both  Professors  to  the  School  at  this  time  are 
well  depicted  in  the  following  letters  from  Greenleaf  to  Sum- 
ner.(i)  On  Jan.  28,  1838,  he  wrote: 

I  am  so  bound  to  Dane  Hall  for  the  winter  that  I  am  able 
to  do  little  more  than  look  in  upon  them  (Hillard  and  Joel  Giles) 
every  few  days,  and  hear  of  clients  who  have  called  for  me  till 
their  patience  was  gone. 

I  am  hard  at  work  as  usual  with  a  winter  class  of  47  and  a 
promise  or  threat  of  a  hundred  next  autumn.  The  judge  is  at 
Washington — sick  at  heart  and  longing  for  the  quiet  of  home  and 
for  a  good  and  substantial  reason  for  resigning  the  Bench. 

And  on  June  13 : 

Our  School  is  steadily  on  the  increase.  We  expect  to  number 
70  or  80  next  term.  We  shall  welcome  as  many  as  we  can  be 
personally  conversant  with,  and  I  think  we  can  in  this  way  do 
good  to  a  hundred,  if  not  more.  Beyond  this  number  we  shall  be 
obliged  to  divide  the  School  and  employ  another  Professor.  I 
think  I  may  say  my  own  ability  to  instruct  keeps  pace  with  the 
School,  and  that  none  of  us  here  study  law  without  profit.  The 
result  of  wider  and  deeper  researches  is  to  make  me  less  exclus- 
ively addicted  to  the  Common  Law,  and  to  create  a  livelier  inter- 
est in  other  forms  of  jurisprudence ;  in  short,  to  lead  me  to  regard 
the  law  much  as  it  is  treated  by  Judge  Story  in  his  incomparable 
Commentaries  on  Bailments — as  a  system  of  principles — of  higher 
and  holier  origin  than  any  codes  whatever,  though  disclosed  with 
more  or  less  symmetry  and  beauty  in  the  codes  of  all  civilized 
nations.  For  our  own  country,  I  am  satisfied  with  the  forms  of 
Common  Law  as  the  medium  of  remedy,  improving  it,  with  a 
liberal  hand,  to  meet  our  habits  and  usages.  Indeed,  I  -think 
there  is  a  great  practical  wisdom  in  Sir  Robert  Walpole's  Quieta 
ne  movete,  and  in  old  John  Adams'  While  You  Stand  Well, 
Stand  Still. 

.  .  .  .  Our  country's  prospects  are  brightening,  for  Van 
Buren's  doom  is  sealed.  Clay  will  be  the  next  president. 

A  letter  to  Sumner  from  Story,  in  August,  1838,  sets  forth 
well  the  latter's  enthusiastic  interest  in  the  School  and  the  re- 
sponse from  his  pupils: 

I  think  the  better  men  are  acquiring  a  higher  tone  of  thinking 
We  talk  the  matter  into  our  law  students  daily.  They  begin  al- 
ready to  be  wide  awake  to  the  dignity  of  the  law  and  its  morals. 


(i)     See   unpublished   letters   in   Sumner  Papers  in    Harvard   College 
Library. 


STORY— GREENLEAF  PERIOD.  5 

Greenleaf  is  excellently  well.  The  Law  School  flourishes.  We 
had  sixty  good  fellows  last  term,  with  the  prospect  of  at  least 
seventy  next  term.  I  have  given  nearly  the  whole  of  last  term, 
when  not  on  judicial  duty,  two  lectures  every  day,  and  even 
broke  in  upon  the  sanctity  of  dies  non  juridicus,  Saturday.  It 
was  carried  by  acclamation  in  the  School,  so  that  you  see  we  are 
alive.  .  .  .  The  revolution  in  public  opinion  is  great  and  de- 
cisive. The  Jackson  age  of  humbug  is  passed  away.  Much  of 
the  mischief  that  he  did  can  never  be  cured — for  he  virtually 
destroyed  the  Supreme  Court — but  commerce  and  trade  will  come 
back  to  their  accustomed  health  and  prosperity. 

The  year  1838-39  opened  with  an  attendance  of  52  from  14 
States ;  from  Massachusetts  22,  Maine  and  Louisiana  5  each,  New 
York  and  Connecticut  4  each;  Virginia  and  Kentucky  3  each; 
Pennsylvania  and  Mississippi  2  each ;  Vermont,  Maryland,  South 
Carolina,  Georgia,  Ohio,  i  each.(i) 

Among  the  notable  students  at  this  time  were  William  Max- 
well Evarts  (L.  S.  1838-39)  of  New  York,  Alexander  H.  Bullock 
(L.  S.  1838-40)  later  Governor  of  Massachusetts,  Charles  Devens 
(L.  S.  1838-40)  later  United  States  Attorney  General  and  Judge 
of  the  Massachusetts  Supreme  Court,  Marcus  Morton  (L.  S. 
1838-40)  later  Judge  of  the  Massachusetts  Supreme  Court, 
James  Gore  King  of  New  York  (L.  S.  1839-40),  and  Ebenezer 
Rockwood  Hoar  (L.  S.  1837-40)  Judge  of  the  Massachusetts 
Supreme  Court  and  United  States  Attorney  General. 

On  Sept.  7,  1838,  Greenleaf  wrote  to  Sumner(2)  : 

We  have  just  commenced  our  autumn  term  in  the  Law  School 
with  67  students,  and  shall  have  upwards  of  70.  The  Southrons 
increase  among  us,  especially  those  from  Louisiana,  who  say  they 
study  their  own  code  better  here  than  at  home. 

And  again  on  Sept.  19: 

This  being  Wednesday  you  will  of  course  imagine  that  it  has 
been  working  day  with  your  friend.  I  have  expounded  and 
ground  up  the  usual  portion  of  Stephen  on  Pleading  and  Black- 
stone  on  the  relation  of  Husband  and  Wife.  The  School  num- 
bers 76,  who  have  just  thundered  past  my  door  and  upstairs  to 


(1)  By  vote  of  May  26,  1838,  of  the  Corporation,  the  Harvard  Com- 
mencement now  came  on  the  fourth  Wednesday  of  August,  and  the  terms 
and  vacations  were  rearranged. 

(2)  See   unpublished   letters    in   Sumner   Papers   in    Harvard    College 
Library. 


6  HARVARD  LAW  SCHOOL. 

attend  an  extra  with  the  judge — "Whom  God  preserve" — for  he 
is  working  wonders  every  day  with  the  law. 

The  new  law  magazine  then  recently  founded  in  Boston — the 
Law  Reporter — stated  in  October  (Vol.  I)  : 

The  prosperity  of  this  School  is,  we  believe,  unexampled  in  this 
country.  ...  To  spend  a  part  of  their  novitiate  at  Cam- 
bridge has  become  almost  a  matter  of  course  with  students  in  law, 
and  the  number  that  go  through  the  whole  course  it  not  large. 

We  understand  that  the  number  of  students  at  present  con- 
nected with  the  School  is  76.  76  young  men  to  be  instructed  in 
the  law  by  two  professors !  .  .  .  The  latter  may  well  ex- 
claim with  Dr.  Watts : 

"And  if  to  eighty  we  arrive 
We  rather  sigh  and  groan  than  live". 

We  doubt  not,  however,  that  they  will  be  able  to  manage  an  hun- 
dred at  least.  After  that,  and  the  time  will  soon  come,  they  may 
well  demand  assistance  of  the  corporation. 

During  the  winter  Story  began  work  on  his  Commentaries  on 
Commercial  and  Maritime  Law,  which  he  intended  to  comprise 
five  or  six  volumes,  and  of  which  he  finished  only  three — Agency, 
Partnership,  and  Bills  of  Exchange. 

An  amusing  comment  on  Story's  colleagues  on  the  Supreme 
Bench  at  this  time  is  found  in  a  letter  written  by  Longfellow 
from  Washington,  Feb.  9,  1839: 

We  then  called  upon  Judge  Story  who  received  us  very  kindly 
and  sent  for  all  the  judges  of  the  Supreme  Court  to  come  down 
and  see  us.  So  down  they  came  and  sat  all  in  a  row  in  front 
of  the  fire.  I  could  hardly  believe  my  eyes  when  I  beheld  these 
men — so  raw  and  rusty!  What  an  inferior  looking  set! — And 
that  one  of  these  should  have  been  put  over  Judge  Story!  Ye 
Gods !  It  doth  amaze  me ! 

The  session  of  the  Supreme  Court  was  marked  by  the  decision 
of  the  great  case  of  Bank  of  Augusta  v.  Earle  (13  Peters  519) 
which  was  argued  by  D.  B.  Ogden,  Sergeant,  and  Webster, 
against  C.  J.  Ingersoll  and  Van  de  Graff,  and  which  was  the  first 
case  establishing  the  right  of  a  corporation  to  do  business  outside 
the  State  of  its  incorporation. 

Greenleaf  in  a  letter  to  Sumner  in  London,  Jan.  18,  1839,  giving 
him  many  commissions  to  buy  books  for  the  Law  School  Library, 
thus  described  the  School  conditions  ( I )  : 

(i)  See  unpublished  letters  in  Sumner  Papers  in  Harvard  College 
Library. 


STORY— GREENLEAF  PERIOD.  7 

This  is  the  first  day  of  the  winter  vacation,  tho'  nominally  the 
last  term  (College  year  now  has  term  of  20  weeks,  12  vacation). 
The  judge  was  with  me  till  the  loth  of  January,  and  with  a 
School  of  87  we  had  plenty  of  work.  It  was  never  in  finer  order, 
and  its  reputation  is  now  such  that  I  should  not  be  surprised  at 
any  number  which  may  hereafter  be  added.  .  .  .  From  all 
this  you  will  rightly  infer,  not  only  that  "Old  Dane"  is  out  of 
debt,  but  that  the  "steam"  is  somewhat  increased.  .  .  .  This 
much  for  items — except  that  the  old  Dana  house,  that  fine  old 
mansion  on  the  hill  south  of  our  village,  was  last  night  destroyed 
by  fire. 

And  on  May  17,  he  again  wrote(i)  : 

Our  institution  continues  to  increase  and  I  hope  we  become 
yearly  better  instructors.  The  present  number  of  students  is  about 
70 — and  they  occupy  all  our  time.  .  .  .  My  life  passes  with- 
out events  except  hearing  recitations,  giving  lectures  and  study- 
ing law.  I  am  growing  older — yet  not  graver,  but  rather  more 
buoyant,  holding  cheerfulness  a  religious  duty  and  cultivating 
charity  with  all  men. 

In  the  spring  term  of  1839,  there  had  entered  the  School  one 
of  its  most  famous  students — noted  later,  not  as  a  lawyer,  but 
as  a  master  of  American  literature — James  Russell  Lowell.  The 
fact  that  he  was  induced  to  study  law  by  hearing  Webster  argue, 
is  an  illustration  of  the  effect  and  influence  of  the  giants  of  the 
Bar  of  those  days  upon  the  young  men.  The  following  amusing 
extracts  from  his  letters  show  his  vacillation  as  to  choice  of  a 
profession : 

October  u,  1838,  I  am  reading  Blackstone  with  as  good  a 
grace  and  as  few  wry  faces  as  I  may. 

October,  1838.  A  very  great  change  has  come  over  the  spirit 
of  my  dream  of  life.  I  have  renounced  the  law.  I  am  going  to 
settle  down  into  a  business  man  at  last,  after  all  I  have  said  to 
the  contrary.  Farewell,  a  long  farewell,  to  all  my  greatness.  I 
find  that  I  cannot  bring  myself  to  like  the  law.  .  .  .  If  I 
thought  it  possible  that  I  ever  could  love  the  law  (one  can't  be  a 
lawyer  without  it),  I  wouldn't  hesitate  a  moment,  but  I  am  con- 
fident that  I  shall  never  be  able  to  be  on  speaking  terms  with  it. 

November  8,  1838.  On  Monday  last  I  went  into  town  to  look 
out  for  a  place,  and  was  induced,  en  passant,  to  step  into  the 
United  States  Court,  where  there  was  a  case  pending  in  which 
Webster  was  one  of  the  counsel  retained.  I  had  not  been  there 
an  hour  before  I  determined  to  continue  in  my  profession  and 
study  as  well  as  I  could. 


8  HARVARD  LAW  SCHOOL. 

Feb.  2,  1839.    I  have  quitted  the  law  forever. 

March  9,  1839.  The  more  I  think  of  business,  the  more  really 
unhappy  do  I  feel  and  think  more  and  more  of  studying  law — I 
shouldn't  wonder  if  next  Monday  saw  me  with  Kent's  Com- 
mentaries under  my  arm.  I  think  I  might  get  to  take  an  interest 
in  it. 

May  26,  1839.  Rejoice  with  me  for  tomorrow  I  shall  be  free. 
Without  saying  a  word  to  anyone  I  shall  quietly  proceed  to  Dane 
Law  College  to  recitation. 

June  4,  1839.  I  begin  to  like  the  law.  And  therefore  it  is 
quite  interesting.  I  am  determined  that  I  will  like  it,  and  there- 
fore I  do. 

July  22,  1839.  If  I  live,  I  don't  believe  I  shall  ever  (between 
you  and  me)  practise  law. 

Sept.,  1839.  I  begin  to  like  the  law;  but  I  shall  let  my  fate  be 
governed  by  circumstances  and  influence. 

March  14,  1841.  (39  Court  St.)  I  am  in  Chas.  G.  Loring's 
office,  and  I  am  getting  quite  in  love  with  the  law. 

The  Law  School  continued  to  increase  in  prosperity,  and 
opened  the  year  1839-40  with  85  students. 

The  pressure  on  the  Professors  was  now  so  great  that  Green- 
leaf  wrote  to  Quincy,  Oct.  18,  asking  that  his  salary  be  perma- 
nently raised  to  $2500,  or  that  an  additional  instructor  be  ap- 
pointed^) : 

So  that  I  may  supply  the  deficiency  by  my  own  exertions  at  the 
Bar;  a  measure  which  the  claims  of  my  family  at  the  present 
rate  of  emolument  render  an  indispensable  duty.  When  I  came 
into  the  department  the  regular  exercises  of  the  Royall  Professor 
were  on  3  days  only  in  the  week,  and  the  School  contained  less 
than  one-half  its  present  number.  It  has  since  been  thought 
expedient  by  the  Professors  to  increase  the  weekly  exercises  by 
nearly  doubling  the  number,  for  the  benefit  of  the  students  of  the 
Institution,  and  the  School  has  increased  from  42  to  88,  increasing 
the  demands  on  my  time  so  far  as  to  leave  me  scarcely  any  for 
practice  in  the  courts,  which  is  essential  to  supply  the  deficiency 
of  salary  for  my  current  support.  During  the  past  year  I  have 
been  obliged  to  decline  professional  engagements  to  an  amount 
greater  than  the  sum  received  from  the  University. 

The  additional  instructor,  on  whom  both  Greenleaf  and  Story 
had  long  had  their  eye,  was  Charles  Sumner,  whose  appointment 
as  a  regular  third  Professor  they  both  desired.  Story  had,  in  the 
previous  June,  declared  that  the  wish  that  lay  nearest  and  dear- 


(i)     See  letter  in  Harv.  Coll.  Papers,  2nd  Series. 


STORY— GREENLEAF  PERIOD.  9 

est  to  his  heart  was  to  leave  the  Law  School  in  good  hands,  and 
that  he  desired  Sumner  and  Hillard  to  succeed  himself;  and 
Greenleaf  had  written  to  Sumner  (who  was  then  in  London) 
as  early  as  Sept.  7,  1838(1)  : 

You  are  daily  acquiring  a  vast  intellectual  and  moral  power 
to  be  welded  on  your  return.  Our  earnest  desire  is  to  have  you 
occupy  an  additional  professor's  chair  with  Judge  Story  and  my- 
self, bringing  into  our  institutions  all  that  power  and  all  the  afflu- 
ence of  your  mind  to  bear  upon  the  great  and  increasing  number 
of  young  men  who  come  to  us  for  instruction  in  constitutional 
and  municipal  law. 

Our  responsibilities  to  our  country  are  great  for  the  influence 
we  thus  indirectly  exert  upon  her  institutions ;  but  we  meet  them 
with  alacrity  and  the  courage  of  honest  and  conscientious  men. 
We  want  the  aid  of  a  yoke- fellow  who  is  both  an  accomplished 
civilian  and  a  sound  common  lawyer,  versed  in  both  systems  but 
addicted  to  neither,  a  liberal,  enlightened,  and  yet  practical,  jurist, 
and  sound  in  constitutional  law.  Need  I  say  that  no  man 
fills  this  space  in  our  eyes  like  yourself. 

So  make  all  your  acquisitions,  my  dear  friend,  bear  on  the 
subject.  .  .  .  Keep  always  in  mind  that  you  are  to  occupy 
an  additional  chair  with  us  as  our  colleague  in  the  great  and 
honorable  work,  practising  also  in  the  courts  in  the  more  impor- 
tant causes  .  .  .  and  in  due  time  hasten  home  to  the  station 
we  are  secretly  endeavoring  to  prepare  for  you. 

Greenleaf  about  this  time  had  removed  his  residence  tempor- 
arily to  Boston,  and  was  hard  at  work  on  his  book  on  Evidence, 
referring  to  which  he  wrote  to  Sumner,  Nov.  29,  1839(2)  : 


(1)  In  view  of  the  fact  that  Sumner's  future  destiny  was  not  to  fill  a 
professor's   chair,   but   to  become   the   great   anti-slavery   statesman,   it  is 
interesting  to  note  that  in  this  year  1839,  there  was  decided,  in  Illinois, 
the  first  case  involving  the  question  of  slavery,  in  which  Abraham  Lincoln 
was  counsel — Bailey  v.  Cromwell,  4  111.  71.     See  Lincoln  as  a  Lawyer,  by 
Frederic  Trevor  Hill. 

The  facts  of  this  case  were,  that  one  Bailey  gave  a  note  in  payment  of 
the  purchase  price  for  a  slave  girl  named  Nance.  The  maker  of  the  note 
declined  to  pay,  on  the  ground  that  Nance  was  not  a  slave,  and  employed 
Lincoln  as  his  counsel.  He  lost  in  the  lower  court  but  won  in  the  Supreme 
Court. 

(2)  See   unpublished    letters    in   Sumner   Papers   in    Harvard    College 
Library. 

The  "Professor  Kent"  referred  to  was  the  son  of  Chancellor  Kent,  later 
Story's  successor  in  the  Harvard  Law  School.  "Brougham's  wig"  was 
long  kept  as  an  interesting  relic  in  Dane  Hall,  but  has  now  disappeared. 
It  had  apparently  been  sent  by  Sumner  to  Kent,  for  in  Feb.  4,  1839,  he  had 
written  from  London  to  George  S.  Hillard,  "Lord  Brougham  has  given 
me  his  full  bottom  Lord-Chancellor's  wig,  in  which  he  made  his  great 
speech  on  the  Reform  Bill.  Such  a  wig  costs  twelve  guineas ;  and  then 
the  associations  of  it !  In  America  it  will  be  like  Rabelais'  gown."  To 


io  HARVARD  LAW  SCHOOL. 

I  go  daily  to  Cambridge,  for  both  the  judge  and  myself  give 
lectures  every  day  except  Saturday.  Our  Law  School  has  been 
up  to  89  this  term,  and  has  already  attracted  a  degree  of  attention 
and  favor  that  almost  alarms  as  well  as  surprises  me,  since  the 
reputation  thus  increased  demands  for  its  support  so  large  an 
amount  of  science  and  so  much  weight  of  character  in  both  pro- 
fessors. I  console  myself  by  constant  study  and  daily  putting 
forth  my  utmost — and  when  that  shall  not  suffice,  it  will  be  plain 
that  my  true  position  will  be  elsewhere,  and  the  professor's  chair 
— detur  digniori. 

You  ask  about  my  book  on  Evidence.  It  is  about  half  written, 
but  as  I  can  now  write  only  in  vacation  or  nearly  so,  it  will  not 
go  to  press  till  next  summer. 

The  judge  is  now  at  work  upon  the  second  edition  of  his 
Bailments.  His  labors  are  incessant,  and  his  learning  vast.  Take 
him  all  in  all,  I  regard  him  as  the  most  accomplished  jurist  now 
living. 

.  .  .  .  We  have  had  an  unusual  number  of  English  visitors 
this  year  to  our  Law  School,  and  amongst  them  three  Harcourts, 
sons  of  the  Archbishop  of  York — The  Solicitor  sat  out  one  of 
the  judge's  lectures.  Brougham's  wig  was  sent  to  us  by  Pro- 
fessor Kent  with  a  very  amusing  letter.  The  New  York  Law 
School  is  defunct.  I  think  ours  is  greatly  improved  in  thorough- 
ness and  exactness  of  instructors — at  least  in  the  Royall  Depart- 
ment;— and  the  quantity  of  study  is  doubled — the  exercises  now 
numbering  16  a  week. 

From  Washington,  Story  wrote  to  Greenleaf,  Feb.  6,  1840, 
referring  to  the  latter's  famous  book :  "I  am  glad  to  hear  that 
you  are  going  on  with  your  work  on  Evidence,  which  I  shall  look 
to  with  deep  interest  as  a  noble  contribution  to  the  common  stock 
of  the  School." 

A  correspondence  at  this  time  between  Story  and  R.  H.  Dana, 
then  a  pupil  in  the  School,  in  which  Dana  took  occasion  to  criti- 
cise the  lightness  of  a  sentence  imposed  by  Judge  Story  in  the 
Circuit  Court  on  the  officers  of  a  vessel  for  cruelty  to  sailors, 
brought  out  the  following  tribute  of  affection  from  Dana : 

It  is  unnecessary  to  mention  to  you,  sir,  (for  I  trust  you  have 
always  felt  it,)  the  respect  and  deep  personal  attachment  enter- 
tained for  you  by  every  member  of  our  School.  It  is  greater  than 
I  have  ever  known  from  young  men  toward  one  standing  in  such 
a  relation  to  them.  In  these  feelings  I  will  not  allow  that  I  am 
surpassed  by  any  one  of  them.  It  is  a  pleasure  to  me  to  have 

Judge  Story,  Sumner  wrote  Feb.  io,  1840,  "I  am  glad  you  have  Brougham's 
wig.  I  always  wished  it  to  go  to  the  Law  School.  Put  it  in  a  case  and 
preserve  it." 


STORY— GREENLEAF  PERIOD.  11 

such  sentiments  and  to  speak  of  them  at  all  times.  I  have  also 
been  brought  up  with  a  conservative  reverence  for  office  and 
age.  Having  these  feelings  and  principles  strong  in  me,  I  was 
at  times  almost  led  to  think  that,  considering  every  thing, — my 
youth,  my  situation  in  the  School,  &c., — it  might  be  better  for  me 
not  to  come  out  upon  such  a  subject.  Yet  the  motives  which  I 
have  mentioned,  and  the  consideration  that  if  I  did  not  take  it 
up  there  was  no  probability  that  any  one  else  would,  have  gov- 
erned me. 

Trusting  that  in  what  I  have  done  I  can  in  no  way  cause  you 
an  unpleasant  feeling,  but  that  it  may  at  some  time  be  of  use  to 
one  or  another  of  my  fellow  beings,  I  hope  you  will  always  believe 
me  to  be, 

Yours,  with  the  deepest  respect  and  affection, 

R.  H.  Dana,  Jr. 

During  the  spring  of  1840,  Charles  Sumner  was  again  engaged 
for  a  short  time  as  Instructor  in  the  Law  School.(i) 

Owing  to  the  frequent  "Town  and  Gown"  disturbances  be- 
tween the  Cambridge  folk  and  the  students,  including  the  law 
students,  the  following  regulations  for  the  Law  Department  were 
voted  by  the  Corporation,  July  25,  1840,  on  Greenleaf's  recom- 
mendation (2)  (Regulations  6  and  8  in  the  Revision  of  1847). 

(6)  Any  member  of  the  Law  School  knowingly  participating 
with  an  undergraduate  in  the  violation  of  any  of  the  Laws  of 
the  University,  shall  be  subject  to  those  laws  in  like  manner  as 
an  undergraduate  and  be  liable  to  the  same  discipline,  to  be  ad- 
ministered by  the  Law  Faculty. 

(8)  Members  of  the  Law  School  resident  in  any  College 
Hall  shall  be  subject  to  such  regulations  for  the  preservation  of 
good  order  and  discipline  as  are  now  or  may  be  established  by  the 
University,  to  be  administered  by  the  Law  Faculty. 

The  necessity  for  these  regulations  appears  clear  from  an 
entry  by  T.  W.  Higginson  in  his  diary,  narrating  a  disturbance 
which  arose,  the  following  year (3)  : 

(1)  Pierce   in  his  Memoirs  and  Letters  of  Sumner,  Vol.   I,  narrates 
that  on  Sumner's  arrival  in  Boston  May  5,  1840,  from  Europe,  "he  was 
met  by  Hillard,  walking  from  the  railway  station,  carrying  in  his  hand 
some  exchequer   tallies.      (These   relics   were   kept   at  the   Harvard   Law 
School  for  some  time.     They  each  consisted  of  a  piece  of  wood  scored 
with  notches  of  different  sizes  split  into  two  parts — 'tally'  and  'counter- 
foil'.    They  were  abolished  in  the  reign  of  George  III  and  William  IV. 
See  Best  on  Evidence,  Part  III,  Chap,  i,  s.  215  note).     .     .     .     Soon  after 
reaching    home,    he    reluctantly    filled,    for    a    few    weeks,    a    vacancy    as 
instructor  in  the  Law  School." 

(2)  See  letter  of  Greenleaf,  Harv.  Coll.  Papers,  2nd  Series,  Vol.  X. 

(3)  Extracts  from  Diary  of  Thomas   Wentivorth  Higginson,  Harvard 
Graduates'  Magazine ,  Vol.  I. 


12  HARVARD  LAW  SCHOOL. 

April  18,  1841.  Nothing  of  great  importance,  except  that  we 
came  near  having  a  pitched  battle  with  the  townspeople  Monday 
night  in  consequence  of  a  slight  row  last  Friday,  when  they 
turned  the  students  out  of  the  Phrenological  lecture,  and  there 
was  a  great  gathering  at  the  cry  of  "Harvard",  but  to  no  effect, 
there  being  no  trouble  when  we  got  down  there,  and  the  faculty 
being  on  hand.  Great  preparations  were  made  for  Monday  night 
— the  Prex  made  a  speech  after  prayer,  and  Mr.  Professor  Green- 
leaf  addressed  the  law  students — yet  it  would,  after  all,  have 
taken  little  to  provoke  one,  for  many  townspeople  were  collected 
and  every  student  was  in  his  room  with  a  club.  I  walked  up  and 
down  for  a  long  time  reconnoitering,  really  excited  in  hopes  of  a 
row,  though  I  thought  it  doubtful. 

Higginson  adds  that  "these  disputes  almost  always. originated 
with  the  Southern  law  students,  who  were  then  numerous,  and 
were  an  impetuous  and  hot  headed  set." 

Another  and  even  more  serious  disturbance  arose  a  year  later, 
in  May,  1842,  between  the  Harvard  undergraduates,  aided  by  the 
Law  School  students,  and  Boston  rowdies.  The  strife  between 
"Town  and  Gown"  had  long  been  active,  but  the  immediate  cause 
of  the  trouble  in  1842  was  the  burlesque  imitations  by  various 
Boston  truckmen  of  a  few  students,  who  "went  in  as  usual  with 
their  Oxford  caps".  It  is  picturesquely  described  as  follows  by 
T.  Prentiss  Allen  (Harv.  1842X1)  : 

The  crowd  soon  amounted  to  2000  or  3000  and  forced  car- 
riages to  stop.  .  .  .  About  7  o'clock,  as  one  or  two  students 
were  passing  through  Washington  Street,  they  were  followed 
and  insulted  by  a  motley  collection  of  scamps,  who  stoned  them 
as  they  went  along. 

This  was  seen  by  some  law  students,  who  rushed  to  assist  the 
others,  and  a  party  of  twenty-five  was  soon  collected.  All  re- 

( I )  See  Town  and  Gown  in  the  Old  Times  by  T.  Prentiss  Allen  in  let- 
ter of  May  24,  1842,  Harvard  Graduates  Magazine,  Vol.  VIII. 

The  disturbances  among  the  students  were  very  frequent  at  the  time. 
The  visiting  committee  of  the  overseers  reported  Jan.  20,  1842,  regarding 
various  attempts  to  set  fire  to  the  fence  and  a  wooden  building  in  the  yard 
and  recommended  criminal  prosecution.  They  also  made  a  report  on  a 
general  combination  of  the  students  not  to  recite  to  an  obnoxious  instruc- 
tor. 

The  most  famous  of  all  College  Rebellions  had  occurred  in  1834 
when,  owing  to  the  unpopularity  of  the  young  instructor  on  elocution,  a 
rebellion  arose  among  the  Freshmen.  Their  cause  was  taken  up  by  the 
other  classes  with  such  ardor  that  practically  the  entire  Sophomore  class 
was  dismissed  by  the  Faculty,  and  many  of  the  Seniors  lost  their  degrees. 

For  interesting  accounts  of  this,  see  Memoirs  of  Henry  Lee,  by  John  T. 
Morse,  Jr.  (1905)  ;  University  Hall,  by  Henry  Lee  in  The  Harvard  Book; 
Life  of  Josiah  Quincy,  by  Edmund  Quincy ;  Diary  of  John  Quincy  Adams. 


STORY— GREENLEAF  PERIOD.  13 

monstrance  proving  useless  against  200  or  300  they  were  forced 
to  use  their  canes  and  make  way  for  themselves  through  the 
crowd — though  with  great  difficulty.  They  thus  fought  them- 
selves along  through  Tremont  Street  to  Tremont  House,  but  the 
keeper,  of  course,  refused  them  admittance  and  they  were  com- 
pelled to  fight  on  the  steps.  The  police  were  prompt,  and  cap- 
tured one  or  two  of  the  scamps,  and  some  navy  lieutenants  as- 
sisted the  students  in  repelling  the  mob ;  and  they  returned  safe 
to  Cambridge. 

But  soon  the  report  was  circulated  that  a  number  of  the  mob 
were  coming  to  Cambridge  to  attack  us  in  our  sanctum.  This 
roused  the  spirit  of  Harvard's  sons.  Soon  the  mob  came  on — 
about  400  or  500  in  all.  They  formed  in  front  of  the  college  in 
the  street  with  shouts,  and  cast  stones  at  Dane  Hall  and  at  some 
of  the  other  college  buildings.  The  President  and  the  Proctors 
were  on  the  alert,  and  guarded  all  the  entrances  to  the  yard  so 
that  no  student  should  go  out. 

.  .  .  .  The  first  of  the  mob  who  entered  the  yard  would 
undoubtedly  have  been  shot,  such  was  the  determination  of  the 
students,  and  the  southerners  were  perfectly  reckless.  The  black- 
guards stayed  about  an  hour. 

.  .  .  .  The  President  yesterday  went  into  town  and  saw 
the  mayor  who  took  prompt  and  energetic  measures  to  subdue 
any  riotous  assembly  in  that  city,  and  the  bridge  was  guarded. 
The  Lancers  were  also  prepared  for  immediate  action. 

In  184041,  at  the  opening  of  the  Law  School  fall  term,  there 
were  99  students  from  21  States,  one  from  Quebec,  and  one  from 
Ireland. 

An  interesting  commentary  on  the  fact  that  a  large  number 
of  the  students  at  this  time  entered  the  advanced  classes  of  the 
School,  instead  of  beginning  their  studies  in  the  Lower  or  Junior 
Class,  is  found  in  the  Law  Reporter,  December,  1840(1)  : 

\Ye  are  surprised  that  the  comparative  number  in  the  Junior 
Class  (of  the  Law  School)  is  not  greater  than  it  is.  It  is  certainly 
desirable  that  they  should  enter  the  school  at  the  beginning  of 
their  studies,  rather  than  at  a  later  period.  It  is  often  thought  to 
be  very  necessary  for  a  student  to  know  something  of  the  prac- 
tice of  the  law  before  he  begins  upon  the  theory;  but  it  is  surely 
best  to  begin  the  study  of  any  science  in  a  regular  systematic  man- 
ner under  suitable  instructors,  and  the  practice  will  take  care 
of  itself  in  due  time. 

The  winter  session  of  the  Supreme  Court  at  Washington  was 


(i)     Law  Reporter,  Vol.  Ill,  p.  319  (1840). 


i4  HARVARD  LAW  SCHOOL. 

notable  for  two  celebrated  cases.  The  first,  Groves  v.  Slaughter 
(15  Peters  449),  involving  the  Mississippi  statute  prohibiting  the 
introduction  into  the  State  of  slaves  as  merchandise  for  sale, 
and  affecting  upwards  of  $3,000,000  of  property,  was  argued  by 
Henry  D.  Gilpin  and  Robert  J.  Walker,  against  Walter  Jones, 
Henry  Clay,  and  Daniel  Webster.  The  second,  U.  S.  v.  Amistad 
(15  Peters  518),  in  which  Judge  Story  delivered  one  of  his  most 
celebrated  opinions,  was  of  peculiar  interest,  because  of  the  ap- 
pearance for  the  defendant  of  John  Quincy  Adams,  then  seventy- 
four  years  of  age  and  whose  last  engagement  as  counsel  before 
the  Court  had  been  in  1809,  thirty-two  years  before,  in  Hope  In- 
surance Co.  v.  Boardman  (5  Cranch  56). 

The  case  involved  the  freedom  of  certain  negroes  who,  while 
being  brought  to  this  country  illegally  by  slave  traders,  had  gained 
mastery  of  the  vessel  and  murdered  the  officers.  Having  been 
taken  together  with  the  vessel  into  a  United  States  port  by  a 
United  States  war  vessel,  they  were  claimed  as  slaves  by  their 
alleged  Spanish  owners.  Much  political  feeling  was  aroused  by 
this  case,  and  Adams,  in  his  diary,  thus  describes  his  argu- 
ment ( I )  : 

Feb.  24.  The  court  room  was  full  but  not  crowded,  and  there 
were  not  many  ladies.  I  had  been  deeply  distressed  and  agitated 
till  the  moment  when  I  rose,  and  then  my  spirit  did  not  sink 
within  me.  With  grateful  heart  for  aid  from  above,  though  in 
humiliation  for  the  weakness  incident  to  the  limits  of  my  powers, 
I  spoke  for  ^l/2  hours  with  sufficient  method  and  order  to  witness 
little  flagging  of  attention  by  the  judges  or  the  auditors.  .  .  . 
The  structure  of  my  argument  was  perfectly  simple  and  compre- 
hensive, needing  no  artificial  division  into  distinct  points,  but 
admitting  the  steady  and  undeviating  pursuit  of  one  fundamental 
principle,  the  ministration  of  justice.  I  then  assigned  my  reason 
for  inviting  justice  specially,  aware  that  this  was  always  the  duty 
of  the  court,  but  because  an  immense  array  of  power — the  Execu- 
tive Administration,  instigated  by  the  minister  of  a  foreign  na- 
tion— had  been  brought  to  bear  in  this  case  on  the  side  of  in- 
justice. ...  I  did  not,  I  could  not,  answer  public  expecta- 
tion; but  I  have  not  yet  utterly  failed.  God  speed  me  to  the 
end. 

Story  writing  to  his  wife,   Feb.  28,   1841,  describes  the  old 


(i)     Still  more  interesting  is   Adams'  full   account  as  to  his   retainer 
and  of  the  progress  of  the  case.    See  Diary  of  John  Quincy  Adams,  Vol.  X. 


STORY— GREENLEAF  PERIOD.  15 

man  as  full  of  his  accustomed  virility  and  belligerency,  and 
speaks  of  the  "extraordinary"  argument  made  by  him — "extra- 
ordinary, I  say,  for  its  power,  for  its  bitter  sarcasm,  and  its 
dealing  with  topics  far  beyond  the  record  and  points  of  discus- 
sion." 

In  April,  1841,  the  students  of  the  Law  School  took  part  in  the 
great  procession  in  Boston  on  the  occasion  of  the  death  of  the 
President  of  the  United  States,  William  Henry  Harrison,  which 
Thomas  Wentworth  Higginson,  then  a  senior  in  College,  describes 
in  his  diary:  "We  were  to  form  in  Pemberton  Square  at  9:30 — 
The  seniors  at  first  mustered  there,  the  others  waited  till  near 
ten  for  the  law  students  to  come  up,  and  then  marched  down 
Beacon  Street.  .  .  .  W'hole  number  about  200 — 25  seniors,  48 
juniors,  70  sophs,  75  fresh;  Law  students,  60  or  70.  Merrill, 
Creswell,  Marshall,  Preston,  Standard  Bearers" ;  and  the  diary 
entry  closes,  "tired  and  dusty — took  the  2  :3O  P.  M.  'bus  to  old 
Cambridge." 

During  this  spring,  Story  published  his  Commentaries  on  Part- 
nership, dedicated  to  Judge  Samuel  Putnam  in  whose  law  office 
he  had  been  a  student. 

The  year  1841-42  opened  with  115  students  (according  to 
Greenleaf's  Report  of  Oct.  19). 

The  fall  of  1841  was  marked  by  a  murder  trial  in  the  State  of 
New  York  which  had  nearly  involved  the  United  States  in  a  war 
with  Great  Britain — People  v.  Alexander  McLeod.  This  case 
arose  out  of  the  burning  of  the  steamer  "Caroline"  and  the  mur- 
der of  an  American  citizen,  by  a  Canadian  rioter  in  Dec., 
1837(1).  Of  this  case  J.  Q.  Adams  wrote,  Oct.  12,  1841 :  "The 
trial  involves  at  once  a  question  of  peace  and  war  with  Great 
Britain,  and  of  civil  war  and  the  existence  of  the  Union  between 
the  General  Government  and  the  Government  of  the  State  of 
New  York.  This  is  one  of  the  consequences  naturally  flowing 
from  the  Jeffersonian  doctrine  of  nullification  and  of  state 
rights;  and  that  doctrine  had  its  origin  in  the  root  of  all  evil — 
slavery." 

That  war  did  not  result  either  from  this  episode  or  from  the 
dispute  over  the  Maine  boundary  line,  at  this  time,  was  due  to 
the  supreme  ability  of  Daniel  Webster  and  to  the  tact  of  the 
English  Ambassador,  Lord  Ashburton ;  and  with  the  negotia- 

(i)     See  25  Wendell  483;  I  Hill  377;  26  Wendell  663. 


16  HARVARD  LAW  SCHOOL. 

tions  of  these  men  Judge  Story  had  intimate  connection,  through 
advice  given  to  both.  ( i ) 

Their  connection  with  Harvard  and  the  Law  School  is  inter- 
estingly told  by  George  W.  Huston  (who  was  a  student  in  the 
School,  1841-1843). 

I  remember  that  during  the  winter  of  1841-42,  Daniel  Webster, 
still  secretary  of  state  under  President  Tyler,  and  Lord  Ashbur- 
ton,  the  British  Minister  at  Washington,  spent  many  weeks  at 
Cambridge.  There  was  then  pending  a  very  grave  question  with 
England  about  the  boundary  between  the  State  of  Maine  and 
Canada.  These  great  men  were  there  to  examine  in  the  library 
at  Harvard,  certain  old  maps  and  charts,  which  bore  upon  this 
question  of  boundary,  and  which  could  be  found  no  where  else. 
In  addition  to  Lord  Ashburton — who,  having  married  an  Ameri- 
can wife,  was  assumed  to  be  friendly  to  her  country — England 
was  believed  to  have  another  man  present,  not  officially,  but  to 
counsel  and  advise  in  questions  that  might  arise.  This  was  the 
Earl  of  Carlisle,  who  was,  however,  better  known  in  America 
as  Lord  Morpeth,  not  only  as  the  ablest  member  of  the  British 
Parliament,  but  as  a  distinguished  man  of  letters;  an  author 
whose  pen  alone  would  have  rendered  him  famous.  Lord  Mor- 
peth— for  so  the  earl  was  known  to  us  students,  and  called  while 
in  Cambridge — had  then  retired  from  Parliament,  and  appeared 
at  Cambridge  ostensibly  as  a  literary  man  visiting  a  great  Ameri- 
can college,  but  he  was,  nevertheless,  very  generally  believed  to 
have  been  sent  by  the  British  government  to  watch  and  guard 
the  progress  of  this  vast  boundary  question.  Lord  Morpeth  was 
then  advanced  in  life  and  a  man  of  peculiarly  unpleasing  appear- 
ance. He  would  quietly  take  a  seat  on  one  of  the  benches  among 
the  students.  Judge  Story,  guilelessly  led  by  some  designing 
student,  would  wander  away  from  the  lesson  and  begin  one  of 
his  fascinating  reminiscences,  telling  in  his  charming  way  what 
Lord  Mansfield,  in  England,  had  thought  on  some  great  ques- 
tion, and  what  Chief  Justice  Marshall,  in  our  country,  had  said 
upon  the  same  matter.  All  the  while  Lord  Morpeth  would  sit  in 
a  negative  manner,  apparently  half  asleep,  his  clumsy  figure 
drooping,  and  with  his  heavy  eyebrows  nearly  covering  his  dull 
eyes,  and  his  thick  lips  hanging  down,  thus  becoming  a  really 


(i)  Sumner  wrote,  Sept.  4,  1842,  "You  will  read  Webster's  letters  to 
Lord  Ashburton.  They  are  the  poetry  of  diplomacy.  I  know  of  no  such 
papers  in  our  history — in  dignity  and  strength  of  composition,  in  the  stately 
pace  of  the  argument  and  the  firmness  of  the  conclusion ;  and  who  excels, 
who  equals  Webster  in  intellect?  With  the  moral  weight  of  Channing 
he  would  become  a  prophet."  On  March  23,  1841,  he  had  written,  "We 
have  been  on  the  verge  of  war.  But  our  Webster  understands  our  diffi- 
culties and  the  law  of  nations,  and  will  not  lack  judgment  or  boldness;  so 
I  fear  not." 


STORY— GREEN  LEAF  PERIOD.  17 

repulsive  object  to  behold.  But  when  Judge  Story  would  turn 
suddenly  toward  him  and  say :  "And  what  do  you  think,  my 
Lord,  on  that  question?"  the  old  man  would  change  as  quickly 
as  a  flash  of  lightning.  He  would  instantly  gather  up  his  lips, 
raise  his  eyebrows,  and,  with  sparkling  eyes  and  intelligent  face, 
he  would  make  a  brilliant  reply. (i) 

The  January  Term  of  the  Supreme  Court  in  1842  was  notable 
for  the  rendering  by  Judge  Story  of  two  of  his  most  famous 
opinions.  In  the  case  of  Prigg  v.  Pennsylvania  (16  Peters  337), 
he  held  that  the  Federal  Fugitive  Slave  Act  of  1793  was  constitu- 
tional ;  that  Congress  had  exclusive  power  under  the  Constitution 
to  legislate  regarding  fugitive  slaves,  and  that  the  Fugitive  Slave 
statute  of  Pennsylvania  was  unconstitutional.  (2)  No  act  of 
Story's  life  ever  received  so  bitter  condemnation.  This  year 
marked  the  beginning  of  the  Free  Soil  party;  and  by  those  up- 
holding its  views,  the  decision  in  the  Prigg  case  was  regarded  as 
a  direct  surrender  to  the  South  and  Southern  principles.  The 
attacks  on  Story  were,  however,  entirely  unwarranted;  for  no 
man  was  more  sincere  in  his  opposition  to  slavery,  and  he  be- 
lieved most  firmly  that  the  legal  doctrine  which  he  had  announced 
in  the  Prigg  case  would  furnish  the  strongest  bulwark  to  the 
National  Government  against  the  increase  of  the  slave  power  in 
the  States. 


(1)  Memories  of  Eighty  Years,  by  George  W.  Huston   (1904). 

(2)  See  Com.  v.   Tracy,  5  Mete,  1843,  construing  the  opinions  in  this 
•case. 

John  Quincy  Adams  wrote  in  his  diary  under  date  of  March  10,  1843 : 
"I  spent  much  of  this  day  in  transiently  reading  the  report  of  the 
trial  in  the  Supreme  Court  of  the  United  States  of  the  case  of  Edward 
Prigg  against  the  Commonwealth  of  Pennsylvania,  otherwise  called  the 
Fugitive  Slave  case — seven  judges,  everyone  of  them  dissenting  from  the 
reasoning  of  all  the  rest,  and  everyone  of  them  coming  to  the  same  con- 
clusion— the  transcendant  omnipotence  of  slavery  in  these  United  States, 
riveted  by  a  clause  in  the  Constitution." 

George  Ticknor  wrote  to  William  Ellery  Channing,  April  20,  1842 : 
"On  the  subject  of  our  relations  with  the  South  and  its  slavery,  we  must, 
— as  I  have  always  thought, — do  one  of  two  things :  either  keep  honestly 
the  bargain  of  the  Constitution  as  it  shall  be  interpreted  by  the  authorities 
— of  which  the  Supreme  Court  of  the  United  States  is  the  chief  and 
safest — or  declare  honestly  that  we  can  no  longer  in  our  conscience  consent 
to  keep  it,  and  break  it.  I  therefore  rejoice  at  every  legal  decision  which 
limits  and  restrains  the  curse  of  slavery;  both  because  each  such  restric- 
tion is  in  itself  so  great  a  good,  and  because  it  makes  it  more  easy  to  pre- 
serve the  Union.  I  fear  the  recent  decision  in  the  case  of  Pennsylvania 
and  Maryland  works  the  other  way,  but  hope  it  will  not  turn  out  so  when 
we  have  it  duly  reported ;  .and  I  fear,  however  the  decisions  may  stand, 
that  the  question  of  a  dissolution  of  the  Union  is  soon  to  come  up  for 
angry  discussion. 

See  Life  and  Letters  of  George  Ticknor. 


18  HARVARD  LAW  SCHOOL. 

The  other  notable  decision  of  Story  at  this  Term  was  that 
landmark  in  Federal  law,  Swift  v.  Tyson  (16  Peters  i),  a  case 
argued  by  W.  H.  Fessenden  of  Maine  against  Richard  H.  Dana, 
Jr.(i) 

In  this  spring  of  1842,  Greenleaf  published  the  first  volume  of 
his  great  work  on  Evidence,  dedicated  to  his  colleague,  (2)  who 
responded  with  the  following  beautiful  tribute,  Jan.  6,  1842 : 

I  will  not  attempt  to  describe  the  emotions  of  deep  sensibility 
and  gratitude  with  which  it  overwhelmed  me.  They  will  not  be 
forgotten  by  me  to  the  latest  hour  of  my  life.  Although  I  am 
thoroughly  conscious  that  I  have  no  just  title  to  much  that  you 
have  said  in  commendation  of  my  labors,  and  that  your  friend- 
ship has  given  to  them  a  warm  and  glowing  color,  which  imparts 
an  attraction  far  beyond  their  intrinsic  merits,  yet  I  cannot  find 
it  in  my  heart  to  ask  you  to  alter  a  single  word,  since  it  expresses 
your  own  sentiments  and  feelings,  with  a  truth  and  sincerity  far 
more  gratifying  to  me  than  all  the  homage  of  public  fame,  so 
hardly  won,  so  transitory,  and  yet  so  eagerly  sought. 

Our  connection  has  been  to  me,  indeed,  a  source  of  inex- 
pressible pleasure  and  satisfaction.  I  recollect,  with  pride,  that 
when  Professor  Ashmun  died,  my  thoughts  turned  upon  you  as 
the  man  of  all  others  best  fitted  to  supply  his  place ;  and  the 
corporation,  with  a  unanimity  and  promptitude  which  deserve  the 
highest  commendation,  seconded  the  choice. 

In  one  respect,  I  cannot  permit  your  dedication  to  pass  without 
a  suggestion,  which  truth  and  justice  demand  from  me.  You 
and  I  have  equally  labored  in  the  same  good  cause  in  the  Law 
School,  with  equal  zeal  and  equal  success.  We  have  shared  the 
toils  together,  and  if  we  have  earned  a  just  title  to  public  con- 
fidence and  respect,  you  are  every  way  entitled  to  an  equal  share 
with  myself,  nay,  in  some  respects,  to  more.  But  for  you,  the 
School  would  never  have  attained  its  present  rank.  Your  learn- 
ing, your  devotion  to  its  interests,  your  untiring  industry,  your 
steadfast  integrity  of  purpose  and  action, — have  imparted  to  all 
our  efforts  a  vigor  and  ability,  without  which,  I  am  free  to  say, 
that  I  should  have  utterly  despaired  of  success.  Nay,  more,  but 
for  your  constant  cooperation  and  encouragement  in  the  common 
task,  I  should  have  drooped  and  lingered  by  the  way  side.  But 
what  I  dwell  on  with  peculiar  delight,  is  the  consciousness  that 
we  have  never  been  rivals,  but  in  working  together  have  gone 
hand  in  hand  throughout;  that  not  a  cloud  has  ever  passed  over 

(1)  It  is  interesting  to  note  that  at  this  session  Rufus  Choate  (who  had 
become  Senator  for  Massachusetts  in  1841,  when  Webster  became  Secre- 
tary of  State  under  President  Tyler)  argued  against  Franklin  Dexter  his 
first  case   in  the   United   States   Supreme   Court    (Prouty  v.   Ruggles   16 
Peters  336). 

(2)  See    especially    review    in    Law    Reporter,    June,    1842,    Vol.    V. 


STORY— GREENLEAF  PERIOD.  19 

our  mutual  intercourse,  and  that  we  have  lived  as  brothers  should 
live ;  and,  I  trust  in  God,  we  shall  die  such. 

Greenleaf  again  besought  the  Corporation  about  this  time  to 
appoint  an  additional  Professor  to  take  the  immediate  care  and 
superintendence  of  the  School  and  instruct  the  Junior  Class  in 
Blackstonc  and  Kent's  Commentaries;  and  renewed  his  previous 
request  for  permission  to  transfer  his  residence  to  Boston,  stating 
that  it  was  essential  to  him  in  his  practice,  which  was  confined  to 
cases  and  law  arguments  in  the  Circuit  and  Supreme  Courts,  say- 
ing: 

This  limited  practice  has  always  led  me  into  town  nearly  every 
day  for  a  few  hours,  and  any  other  professor  will  naturally 
be  obliged  to  do  the  same.  And  I  am  unable  to  perceive  that,  to 
retain  it,  would  withdraw  from  the  Law  School  any  of  the  time 
and  attention  I  have  been  accustomed  to  bestow  and  am  still 
ready  to  give.(i) 

The  Corporation,  while  willing  to  grant  the  latter  request,  could 
not  yet  see  its  way  clear  to  providing  for  a  third  Professor. 

During  this  year,  Story  was  consulted  by  many  lawyers  from 
Rhode  Island  regarding  the  new  Constitution  for  that  State,  the 
agitation  for  which  resulted  in  the  so-called  Dorr's  Rebellion(2). 
The  year  was  also  marked  by  two  cases  in  the  Massachusetts  Su- 
preme Court  of  the  highest  importance, — Farwell  v.  Boston  and 
Worcester  R.  R.  Corp.  (4  Mete.  49),  argued  by  Charles  G.  Loring 
against  R.  Fletcher  and  G.  Morey,  in  which  Chief  Justice  Shaw 
established  the  "fellow  servant"  doctrine  in  the  law  of  Torts; 
and  Com.  v.  Hunt  (4  Mete,  in),  the  first  labor  case  in  the 


(1)  See  letter  of  April,  1842,  Harv.  Coll.  Papers,  2nd  Series,  Vol.  XI. 
Greenleafs    reputation   at   the    Bar   was    constantly   increasing   and   the 

number  of  important  cases  which  he  argued  while  still  Law  Professor,  is 
remarkable. 

Some  of  the  more  notable  were  Cambridge  v.  Lexington,  17  Pick.  227 
(1835)  in  which  he  appeared  with  Fay  and  Whipple  against  S.  Hoar  and 
Peabody;  Andovcr  and  Medford  Turnpike  Corp.  v.  County  Com.,  18  Pick. 
486  (1836)  which  he  argued  against  Choate;  Wright  v.  Dane  5  Mete.  485 
(1843)  which  he  argued  against  S.  Bartlett  and  B.  R.  Curtis;  Dana  v. 
Valentine  5  Mete.  8  (1842)  ;  Ingalls  v.  Bills  9  Mete.  I  (1845)  ;  Smith  v. 
Hurd  12  Mete.  371  (1847). 

His  appearance  in  the  United  States  Circuit  Courts  was  also  very 
frequent. 

(2)  For  interesting  account  of  this  Rebellion  see  Com.  v.  Blodgett,  12 
Metcalf  56  (1846),  and  Luther  v.  Borden  7  Howard  i  (1849)  ;  also  article 
on  the   Trial  of  Thomas   W.  Dorr  for  High  Treason  in  Law  Reporter, 
Vol.  VII    (1844). 


20  HARVARD  LAW  SCHOOL. 

United  States  decided  by  a  court  of  last  resort.  It  was  argued 
by  Atty.  Gen.  James  T.  Austin  against  Robert  Rantoul(i). 

The  year  was  memorable  in  the  annals  of  the  Law  School  by 
reason  of  the  bequest  made  to  it  in  the  will  of  Benjamin  Bussey, 
a  wealthy  merchant  of  Roxbury,  reported  to  the  Corporation, 
June  25,  1842,  as  one  of  the  largest  donations  for  public  education 
that  Harvard  College  or  any  other  institution  in  Massachusetts 
had  ever  received  under  the  will  of  any  private  individual. 

Benjamin  Bussey  was  born  on  March  I,  1757,  in  that  part  of 
Stoughton,  Mass.,  now  Canton. 

He  served  in  the  Revolutionary  War  at  Ticonderoga,  and  also 
in  the  Saratoga  Campaign  which  resulted  in  Burgoyne's  defeat. 
In  1778,  he  started  in  business  at  Dedham,  Mass.,  as  a  goldsmith ; 
later  he  took  up  a  general  mercantile  trade,  especially  in  furs, 
and  by  1790  had  accumulated  $25,000,  when  he  moved  to  Boston. 
In  1800,  he  removed  to  his  Roxbury  farm,  where  he  resided 
during  the  rest  of  his  life,  taking  great  interest  in  agriculture. 

In  1819,  he  started,  at  Dedham,  one  of  the  first  successful 
woolen  mills  in  the  United  States.  This  mill  property,  proving 
exceedingly  prosperous,  in  1841,  it  was  estimated,  that  his  profits 
had  been  upwards  of  $170,000.  He  died,  January  13,  1842,  at  the 
age  of  eighty-three.  (2) 

By  his  will,  dated  July  30,  1835,  after  making  due  provision  for 
his  family,  and  after  many  annuities  and  legacies  to  his  friend >. 
he  bequeathed  the  whole  residue  to  Harvard  College (3).  one-half 


(1)  See  Law  Reporter,  Vol.  VII,  for  contemporaneous  article  on  this 
case. 

The  state  of  public  opinion  on  the  subject  of  labor  unions  at  this  time 
may  be  gathered  from  a  review  of  the  Constitution  of  the  Trades  Union  of 
the  City  and  County  of  Philadelphia,  in  Amer.  Quarterly  Review,  Vol. 
XIX,  as  late  as  June,  1836,  in  which  it  is  said : 

"We  protest  against  the  introduction  of  such  foreign  commodities  as 
Trades  Unions  into  the  United  States.  .  .  .  They  are  the  productions 
of  other  soils  and  are  fastened  under  other  influences.'' 

(2)  See    Benjamin    Bussey    in    Dedham    Historical   Register,    Vol.    X 
(1899).     The  Dedham  H'oolcn  Mills  in  Dedham,  Dedham  Historical  Reg- 
ister, Vol.  II  (1891).    MSS.  Autobiography  in  Harvard  College  Library. 

See  also  Boston  Daily  Advertiser,  February  10,  1842;  and  Tribute  to  the 
Memory  of  Benjamin  Bussey,  by  Rev.  Thomas  Gray. 

(3)  The  will  read  as  follows: 

"And  I  do  further  order  and  direct  that  from  and  after  the  time  that 
my  said  mansion  house  and  estate  in  Roxbury  called  "Woodland  Hill" 
shall  cease  to  be  occupied  by  any  of  my  family,  pursuant  to  the  directions 
herein  given,  that  the  same  be  conveyed  by  my  said  trustees  to  the  Presi- 
dent and  Fellows  of  Harvard  College,  for  the  purposes  hereinafter  men- 
tioned. And  I  do  further  order  and  direct  that  after  the  payment  of  se- 
curity of  payment  of  all  the  several  sums  of  money  and  annuities  hereby 


STORY— GREENLEAF  PERIOD.  21 

of  the  net  income  of  the  property  so  conveyed  to  be  devoted  to 
courses  of  instruction  in  practical  agriculture  and  other  similar 
foundations. — now  the  Bussey  Institution, — the  other  half  of  the 
net  income  to  be  equally  divided,  one  portion  thereof  to  be  paid 
"for  the  encouragement  and  promotion  of  theological  education," 
and  the  other  moiety  "to  the  encouragement  and  promotion  of 
legal  education  in  said  College,  by  the  endowment  of  professor- 
ships or  scholarships  in  the  Theological  and  Law  Schools  re- 
spectively, by  the  purchase  of  books,  erection  of  buildings,  and 
by  such  other  means  as  may  in  their  judgment  render  the  income 
of  the  property  hereby  appropriated  most  available  in  the  accom- 
plishment of  the  objects  proposed." 

The  liberal  and  patriotic  views  which  he  entertained  of  the 
value  of  education  were  well  set  forth,  as  follows : 

Before  proceeding  to  make  a  further  disposition  of  my  prop- 
erty and  estate,  I  think,  it  will  tend  to  elucidate  and  explain  the 
several  devises  and  dispositions  thereof  hereinafter  made,  to 
state  that  in  making  this  will,  I  have  two  objects  chiefly  in  view. 
My  primary  object  has  been  to  provide  in  the  best  and  most 
secure  manner  in  my  power  a  comfortable  and  respectable  living 
after  my  decease  for  my  family  viz. :  My  wife  if  she  shall  outlive 
me,  and  my  daughter  and  her  children  now  living,  and  to  make 
some  provision  for  great  grandchildren;  my  second  object  has 
been  to  benefit  my  fellow  citizens  and  posterity  according  to  my 
ability,  by  devoting  ultimately  a  large  portion  of  my  fortune 
to  promote  those  branches  of  education,  which  I  deem  most  im- 
portant and  best  calculated  to  advance  the  prosperity  and  happi- 
ness of  our  common  country.  I  have  also  felt  a  particular  desire 
to  increase  the  usefulness  of  the  schools  of  Law  and  Theology  in 
Harvard  College  in  Cambridge.  In  a  nation  whose  government 
is  held  to  be  a  government  of  laws,  I  deem  it  important  to  pro- 
mote that  branch  of  education  which  lies  at  the  foundation  of 
wise  legislation  and  which  tends  to  ensure  a  pure  and  uniform 
administration  of  justice  and  I  have  considered  that  in  a  country 
whose  laws  extend  equal  protection  to  all  religious  opinions,  that 
education  which  tends  to  disseminate  just  and  national  views  on 
religious  subjects  is  entitled  to  special  patronage  and  support. 

The  year  1842-43  opened  at  the  Law  School  with  in  students 
from  22  States. 


ordered  to  be  paid  by  my  said  trustees,  and  after  all  the  purposes  of  said 
trusts,  so  far  as  respects  my  family  and  all  annuitants  herein  mentioned 
shall  have  been  secured  and  accomplished,  all  the  residue  of  said  trust 
property  and  estate,  real,  personal  and  mixed  with  the  proceeds  and  accu- 
mulations thereof  shall  be  conveyed  and  transferred  by  my  said  trustees  to 
the  President  and  Fellows  of  Harvard  College." 


22  HARVARD  LAW  SCHOOL. 

The  second  day  before  Commencement  of  this  year,  August 
23,  1842,  was  noted  for  the  first  meeting  of  the  Harvard  Alumni 
Association,  an  oration  on  The  Danger  and  Difficulties  of  and 
Dignity  of  Scholarship  in  the  United  States  being  delivered  by 
Story  as  Vice-President,  the  President,  John  Quincy  Adams,  de- 
clining. ( i ) 

(l)  The  history  of  the  formation  of  this  Association  is  interestingly 
told  by  Rev.  Dr.  John  Pierce  and  by  John  Quincy  Adams  in  their  diaries. 

Pierce  notes,  August  28,  1839  (See  Mass.  Hist.  Soc.  Proc.  2nd  Series, 
Vol.  V  (1890): 

"After  dinner  the  alumni  met  in  the  chapel  and  a  committee  of  five 
were  chosen  to  prepare  a  plan  for  an  annual  meeting  of  the  alumni  and 
submit  it  the  next  year.  It  was  painful  to  see  how  small  a  number  ap- 
peared to  take  interest  in  this  project,  the  meeting  while  I  was  there 
amounting  at  no  time  to  more  than  50." 

Adams  writes,  August  18,  1840: 

"Afternoon  visits  from  Mr.  William  Minot  and  Charles  P.  Curtis. 
There  has  been  for  two  or  three  years  a  project  for  a  general  association 
of  the  graduates  of  Harvard  University  to  hold  annual  meetings  the  day 
before  Commencement,  intentionally  as  a  substitute  for  the  meetings  and 
literary  exercises  of  the  Phi  Beta  Kappa  Society  the  day  after  Commence- 
ment. 

The  day  before  the  last  Commencement  there  was  a  meeting  of  the 
Alumni  at  which  a  committee  of  five  were  appointed  to  prepare  and 
report  on  the  day  before  the  ensuing  Commencement  a  plan  for  such  a 
general  association.  Mr.  Minot  and  Mr.  Curtis  are  members  of  that 
committee  and  came  to  enquire  if  I  would  consent  to  be  put  in  nomina- 
tion for  the  office  of  President  of  the  Society.  I  felt  myself  honored  by  the 
proposal,  and  said  I  had  only  two  objections  against  it — one  the  conscious- 
ness of  my  inefficiency  for  the  office,  and  the  other  a  warm  regard  for 
the  Phi  Beta  Kappa  Society  and  an  aversion  to  join  in  .any  measure  which 
would  seem  to  have  a  bearing  of  hostility  to  them.  They  said  that  the 
members  of  the  Phi  Beta  Kappa  Society  had  themselves  originated  the 
proposal  of  the  general  association  and  almost  universally  favored  it. 
Mr.  Curtis  read  to  me  the  report  to  be  made,  including  a  constitution  for 
the  new  society.  A  president,  vice-President,  and  seven  directors,  are 
proposed  for  the  organization  of  the  society — Judge  Story  and  Edward 
Everett  are  proposed  for  vice-Presidents.  I  consented  to  place  my  name 
at  their  disposal." 

Pierce  writes  August  26,  1840: 

"In  the  afternoon  at  IV  there  was  a  meeting  in  the  chapel ;  and  the 
report  of  the  committee  appointed  last  year  recommending  to  form  a 
Society  of  Alumni  to  meet  on  the  day  before  Commencement,  dine  to- 
gether and  have  appropriate  exercises,  was  accepted ;  and  John  Quincy 
Adams  was  chosen  president." 

Adams  writes,  April  26,  1841 : 

"There  was  in  this  morning's  newspapers  an  advertisement  of  a  meeting 
of  the  Alumni  of  Harvard  University  at  half  past  three  this  afternoon, 
which  I  attended  with  my  son.  There  were  between  60  and  70  persons 
present  and  I  was  called  to  preside  at  the  meeting.  The  Society  was 
formed  last  summer,  and  in  my  absence  I  had  been  unanimously  elected 
its  President.  The  purpose  of  the  present  meeting  was  briefly  stated  by 
Mr.  John  Pickering,  and  more  at  large  in  a  speech  by  Judge  Story.  The 
constitution  of  the  society  was  then  read,  and  a  book  was  opened  to  which 
each  member  of  the  Society  subscribed  his  name,  with  the  payment  of  one 
dollar.  Two  resolutions  were  then  offered  by  Mr.  John  Pickering  and 
adopted,  for  raising  a  subscription  to  erect  a  building  which  may  serve  as 


STORY— GREENLEAF  PERIOD.  23 

The  exercises  were  held  in  the  church ;  and  afterwards  between 
five  and  six  hundred  graduates  sat  down  at  dinner  in  "the  new 
and  spacious  halls  in  old  Harvard"  with  Story  as  presiding  officer. 
The  following  account  of  the  toasts  connected  with  the  Law 
School,  appeared  in  the  Boston  Daily  American(i). 

"To  the  toasts  of  'Nathan  Dane — He  added  the  law  to  the  proph- 
ets. The  prophets  can  get  along  very  well  without  the  law,  but 
the  Law  cannot  get  along  without  some  profits/  Professor  Green- 
leaf  responded  in  a  beautiful  speech,  abounding  in  humor  and 
pleasantry.  He  must  imagine  the  President  to  be  absent,  as  he 
was  as  much  interested  in  the  Law  School  as  himself;  and  he 
was  very  happy  to  do  so,  as  there  were  some  things  that  he  could 
say  in  his  absence,  which  perhaps  he  could  not  venture  upon  in  his 
presence. 

He  denominated  Air.  Dane  as  the  American  Viner,  and 
expressed  a  grateful  sense  of  the  munificence  of  Boston  mer- 
chants who  had  followed  the  example  of  that  Prince  of  Mer- 
chants, Isaac  Royall,  such  as  her  Hancocks,  her  Eliots,  her  Per- 

a  dining  hall  for  their  anniversaries  and  on  Commencement  Days,  and 
in  which  the  Panorama  of  Athens,  some  years  since  presented  by  Theo- 
dore Lyman,  may  be  on  constant  exhibition.  President  Quincy  presented 
plans  for  such  a  building  with  estimates  of  the  cost,  amounting  to  $6000 
if  of  wood,  $12,000  of  brick,  and  $17,000  of  stone.  The  subscription  was 
opened  and  several  of  the  members  present  subscribed  each  $100,  for 
which  sum  I  subscribed  my  name  at  the  head  of  the  list.  There  was  a 
committee  of  three,  William  Minot,  Charles  G.  Loring  and  Samuel  A. 
Eliot,  which  called  the  present  meeting,  and  to  whom  were  now  added 
four  others — John  Amory  Lowell,  Benjamin  A.  Gould,  Dr.  Francis  Park- 
man  and  my  son,  Charles  Francis  Adams — to  carry  the  resolution  in  ex- 
ecution. The  meeting  was  held  in  the  Circuit  Court  Room  and  about  5 
o'clock  adjourned  without  delay." 

Pierce  writes,  August  25,  1841 : 

"There  was  no  meeting  of  the  Alumni.  It  had  been  intended  to  observe 
the  first  anniversary  of  the  society  on  the  day  before  Commencement. 
For  this  purpose  Hon.  John  Quincy  Adams  was  chosen  to  deliver  the  first 
Anniversary  address.  Judge  Story  was  chosen  as  his  substitute.  But 
Mr.  Adams  was  delayed  by  the  extra  session  of  Congress.  Judge  Story 
has  recently  had  an  illness  which  he  urged  as  an  excuse." 

In  the  Harvard  College  Archives,  Harv.  Coll.  Papers,  2nd  Series  Vol. 
X">  is  a  letter  from  a  Committee  of  the  Alumni  signed  by  William  Minot, 
Jan.  25,  1842,  offering  $2500  towards  expense  of  fitting  up  lower  story  of 
Harvard  Hall  "with  an  understanding  that  it  may  be  used  at  the  annual 
meeting  of  the  Association  of  the  Alumni,  and  that  the  corporation  will 
permit  them  to  use  the  meeting  house  for  the  literary  exercises  at  these 
meetings." 

(i)  See  Daily  American  Aug.  25,  1842.  Other  speakers  were  President 
Quincy,  Dr.  Bigelow,  Rev.  Dr.  Noyes,  Washington  Allston,  Daniel  Lord 
of  the  New  York  Bar,  Benjamin  R.  Curtis,  Secretary,  Chief  Justice  Shaw, 
Josiah  Quincy,  Jr.,  President  of  the  Phi  Beta  Kappa,  Gov.  John  Davis, 
George  Bancroft,  Charles  P.  Curtis,  George  S.  Hillard  for  the  class  of 
1828,  ex-Governor  Swain  of  North  Carolina,  Richard  H.  Dana. 


24  HARVARD  LAW  SCHOOL. 

kins,  Bussey,  etc.  After  paying  a  handsome  tribute  to  their  lib- 
erality, and  in  allusion  to  the  sentiment  which  had  been  given, 
he  would  give  'The  merchants  of  New  England,  whose  sagacious 
liberality  applied  the  remains  of  the  profits  to  the  endowment  of 
the  School  of  Law.' 

The  President  said  there  were  several  other  sentiments  touch- 
ing the  foundation,  although  the  regular  toasts  were  got  through 
with,  which  he  would  give — 'The  Law  School  of  Harvard  Uni- 
versity—The flourishing  condition  of  that  branch  of  the  Univer- 
sity is  established  by  one  green  leaf.'  .  .  .  'The  Law  School 
may  it  ever  remain,  as  now,  in  the  green  leaf  of  its  prime.'  . 

.  .  .  'The  Dane  Law  School — If  such  things  are  done  in  the 
green  leaf,  what  may  we  expect  in  the  dry.' 

The  Marshal  said  a  sentiment  had  been  handed  in  which  he 
begged  leave  to  give, — 'The  Law  School — Nathan  Dane  not  only 
laid  the  foundation,  but  put  on  its  first  Story.'  " 

In  October  of  this  year  arose  the  famous  case  of  George  Lat- 
imer,  a  fugitive  slave.  A  Virginian  named  Gray  applied  on  Octo- 
ber 22  to  Judge  Story  for  an  order  under  the  Federal  Fugitive 
Slave  Act,  which  was  granted,  placing  the  alleged  slave  in  Gray's 
custody  and  assigning  a  date  for  a  hearing.  Pending  the  hearing, 
Latimer  was  placed  in  custody  of  the  sheriff  in  the  Suffolk 
County  jail.  Two  days  later,  a  writ  of  personal  replevin  was 
sued  out  in  Latimer's  name  and  heard  by  Chief  Justice  Shaw, 
who  denied  it  pending  the  hearing  in  the  Federal  Court. (i) 
Meanwhile  Judge  Story  became  ill  and  a  hearing  was  assigned 
by  District  Judge  Peleg  Sprague  for  November  25.  But  owing 
to  the  popular  feeling  aroused,  the  sheriff  of  Suffolk  County 
ordered  Latimer's  removal  from  the  jail ;  and  finally  the  slave 
owner  accepted  the  sum  of  $400,  raised  by  subscription,  for  a 
release  of  his  claim,  his  counsel  having  become  satisfied  that  "to 
attempt  to  keep  Latimer  in  any  other  place  than  the  jail  was  to 
raise  at  once  a  signal  for  riot,  if  not  bloodshed." 

This  action  was  taken  chiefly  by  reason  of  a  meeting  held  by 
the  abolitionists  in  Faneuil  Hall  on  October  30,  in  which  speeches 


(i)  Latimer  was  also  arrested  on  charges  of  larceny  on  Oct.  19  and 
Oct.  20;  and  attempts  made  by  various  abolitionists  to  rescue  him  from 
the  officer  resulted  in  the  case  of  Commonwealth  v.  Tracy,  5  Mete.  536 
(1843),  'n  which  Chief  Justice  Shaw  delivered  an  elaborate  opinion  con- 
struing Judge  Story's  decision  in  Prigg  v.  Pennsylvania. 

See  full  account  of  the  Latimer  proceedings  in  the  courts  in  Law  Re- 
porter, Vol.  V  (March,  1893). 


STORY— GREENLEAF  PERIOD.  25 

of  the  most  violent  character  were  delivered.  The  Chairman 
compared  Judge  Story  with  the  infamous  English  Judges,  Scroggs 
and  Jeffries,  and  termed  him  "Slave  catcher  in  chief  for  the 
Xew  England  States."  Newspaper  publications  followed  during 
the  succeeding  weeks,  in  which  fierce  denunciations  were  made  of 
Judge  Shaw,  and  threats  were  indulged  in  that  "the  slave  never 
shall  leave  Boston,  even  if  to  gain  that  end  our  streets  pour  with 
blood".  The  ministers,  Theodore  Parker  and  John  Pierpont.  were 
especially  active  and  violent,  in  attacks  on  Judge  Shaw  and  Story. 
Charles  Sumner  wrote,  December  16,  1842,  "I  suppose  Judge 
Story  would  have  felt  bound  to  order  the  poor  creature  into  sla- 
very, but  the  decree  could  not  have  been  enforced. 
This  incident  has  called  forth  and  given  body  to  the  feeling 
already  existing  on  the  subject  of  slavery  in  Massachusetts." 

Under  such  conditions  it  may  well  be  imagined  how  great  an 
interest  was  taken  in  this  case  by  the  large  body  of  Southern  stu- 
dents in  the  Law  School. 

During  the  fall  and  winter  of  1842-43,  Judge  Story's  health 
became  so  precarious  that  he  was  forced  to  give  up  all  work, 
and  to  omit  attendance  at  the  session  of  the  Supreme  Court  at 
Washington.  The  Corporation,  in  March,  1843,  having  voted  a 
leave  of  absence  without  loss  of  pay,  a  trip  to  Europe  was  con- 
templated by  him,  but  never  consummated.  ( i )  During  the  spring 
he  published  his  last  book,  the  Commentaries  on  Bills  of 
Exchange,  dedicated  to  Greenleaf,  as  his  "full  testimony  to  the 
eminent  ability,  the  unwearied  diligence,  the  ample  learning  and 
the  conscientious  fidelity  with  which  you  have  performed  all  your 
official  duties,"  and  "a  memorial  of  our  long,  uninterrupted  and 
confidential  friendship." 

During  Story's  illness.  Charles  Sumner  was  again  appointed 
Instructor,  Feb.  25,  1843. (2) 


(1)  See  vote  in  Corporation  Records  March  25,  1843. 

"The  President  stated  to  the  Board  that  he  had  received  from  Profes- 
sor Story  a  letter  requesting  leave  of  absence  during  the  ensuing  sea- 
son for  the  purpose  of  seeking  a  restoration  of  his  health  in  a  foreign  cli- 
mate. 

Voted  that  leave  be  granted  as  requested  and  that  his  salary  as  Pro- 
fessor be  continued  during  his  absence,  and  that  Professor  Story's  letter 
be  placed  on  file." 

(2)  See  vote  in  Corporation  Records,  Feb.  25,  1843: 

"It  having  become  necessary  to  provide  some  further  temporary  means 
of  instruction  in  the  Law  School  on  account  of  the  indisposition  of  the 
Hon.  Joseph  Story,  Dane  Professor  of  Law. 


26  HARVARD  LAW  SCHOOL. 

A  graphic  description  of  the  Law  School  at  this  time  has  been 
written  for  the  author  (1908)  by  Judge  David  Cross  of  Massa- 
chusetts, N.  H.,  who  was  a  law  student  in  the  second  term  of 
1842-43 : 

Text  books  were  used  for  study  and  twenty-five  pages  or  more 
were  given  for  each  lecture.  Story  was  in  poor  health  and  gave 
lectures  on  the  United  States  Constitution  occasionally.  Green- 
leaf  and  Sumner  gave  two  or  three  lectures  every  day.  Story, 
as  I  remember  it,  asked  no  questions  at  his  lectures;  Sumner 
asked  a  few  questions,  but  Greenleaf  many.  My  recollection  of 
Sumner  is  that  he  was  a  ready  and  agreeable  talker  upon  what- 
ever was  the  theme  of  the  lecture,  Agency,  Partnership  or  other 
subjects;  that  he  confined  his  talk  to  the  given  pages  in  the  text 
book,  but  that  he  did  not  question  the  students  or  so  develop  the 
lecture  as  to  present  anything  new  outside  of  the  text  book,  or 
compel  the  students,  by  his  method,  to  hard  and  close  study  of  the 
lesson.  Out  of  the  class  room  Sumner  was  agreeable  and  com- 
panionable. One  thing  I  remember  about  his  talk  after  a  lecture 
in  relation  to  his  travels  in  England.  After  his  graduation  from 
the  Law  School  he  visited  England,  and  Judge  Story  gave  him 
letters  of  introduction  to  Judges  and  eminent  lawyers  there. 
One  of  the  Judges  to  whom  he  had  a  letter  of  introduction 
invited  him  to  take  a  seat  with  him  on  the  bench  during  the  trial 
of  a  case,  and  in  the  course  of  the  trial  a  question  of  law  arose, 
when  the  Judge,  turning  to  Mr.  Sumner  said :  "I  do  not  recollect 
any  reported  case  that  covers  this  question  of  law.  Do  you?" 
Mr.  Sumner  immediately  named  the  parties,  volume  and  page  in 
the  English  Reports,  of  a  case  exactly  in  point.  The  Judge  sent 
for  the  book  and  found  it  as  Mr.  Sumner  stated,  and  gave  his 
decision  accordingly.  Mr.  Sumner  said :  "The  Judge  seemed 
greatly  surprised  at  my  readiness,  and  treated  me  as  though  I  was 
really  a  lawyer.  The  fact  was,"  said  Mr.  Sumner,  "I  had  in  the 
Moot  Court  at  the  Law  School  a  case  in  which  this  precise  ques- 
tion was  in  issue,  and  I  made  myself  familiar  with  all  the  cases  I 
could  find,  and  especially  this  one.  This  was  my  good  luck,"  Mr. 
Sumner  said,  "and  it  is  doubtful  if  I  could  have  given  so  exact 
an  answer  in  any  other  case." 

Story  and  Greenleaf  were  very  different  in  temperament,  in 
method  and  in  speech.  They  seemed  fond  of  each  other,  and  a 
vein  of  humor  would  appear  in  each  of  them  whenever  they 
talked  upon  questions  in  which  we  knew  they  differed. 

Story  was  enthusiastic,  demonstrative  and  at  times  eloquent, 
quoting  Latin  and  wandering  from  the  text  into  themes  entirely 

Voted:  That  Charles  Sumner  Esq.  of  Boston  be  appointed  to  instruct 
in  the  Law  School  until  further  order  of  this  Board. 

Voted:  That  he  be  paid  a  compensation  for  his  services  therein  at  the 
rate  of  $1,200  a  year." 


STORY— GREENLEAF  PERIOD.  27 

foreign.  He  was  most  interesting  and  compelled  attention  and 
admiration. 

Greenleaf  was  concise,  clear,  and  confined  every  word  to  the 
subject  of  the  lecture.  Story  magnified  the  Civil  Law  and  told  us 
of  the  indebtedness  of  the  world  of  law  to  it.  Greenleaf  magni- 
fied the  Common  Law  and  told  us  of  its  superiority  over  the 
Civil  Law.  There  seemed  to  be  a  sort  of  rivalry  of  these  two 
men  as  advocates,  one  of  the  Civil  Law  and  the  other  of  the 
Common  Law.  Each  would  become  enthusiastic  and  eloquent  at 
times  on  these  two  branches  of  the  law,  and  Greenleaf  at  one 
time,  as  I  remember  it,  said,  in  substance,  in  speaking  of  Civil 
and  Common  Law.  "There  is  no  wrong  that  cannot  be  remedied 
and  no  right  that  cannot  be  enforced  under  Common  Law  pro- 
cedure." As  I  remember  his  words,  he  further  said: 

"The  Common  Law  is  Christian;  It  has  been  baptized."  He 
then  gave  instances  in  which  it  had  been  claimed  that  the  only 
remedy  was  in  the  Court  of  Chancery  under  some  principle  of 
Civil  Law,  and  he  then  pointed  out  how  the  remedy  could  be 
applied  at  Common  Law.  He  was  a  marvel  in  ingenuity,  clear- 
ness and  logic,  in  developing  a  way  of  doing  things  in  Common 
Law.  It  was  interesting  to  listen  to  his  remarkable  skill.  It 
seemed  like  explaining  some  difficult  puzzle.  I  never  listened  to 
a  man  who  in  few  words  could  make  clear  to  us  difficult  and 
tangled  problems. 

Greenleaf  asked  questions  at  every  lecture,  and  they  were  in 
such  a  way  the  student  must  understand  the  subject  under  dis- 
cussion to  answer  it.  If  the  answer  was  incorrect,  or  not  clear, 
further  questions  were  asked,  in  a  pleasant,  agreeable  manner,  but 
the  student  after  one  such  questioning  never  forgot  to  be  better 
prepared  for  any  subsequent  lecture  under  Greenleaf. 

Story's  lectures  on  the  Constitution  were,  as  it  now  seems  to 
me,  eloquent  eulogies  upon  the  men  who  took  part  in  framing  the 
Constitution  of  the  United  States,  and  of  the  men  of  that  time 
who  advocated  different  views  of  the  provisions  of  the  Constitu- 
tion. We  had  text  books  and  pages  assigned  for  our  study,  but 
Mr.  Story's  lectures  had  very  little  to  do  with  the  text  in  the 
book.  Occasionally  Story  would  talk  to  us  upon  our  duties  as 
future  lawyers,  and  he  told  us  there  was  'nothing  inconsistent 
in  a  lawyer  being  learned  as  a  scholar  as  well  as  in  law.  He 
was  very  emphatic  in  urging  us  to  devote  time  to  the  study  of 
Greek  and  Latin,  and  to  be  well  furnished  in  literature.  His 
eulogies  were  greater  and  more  eloquent  upon  those  who  were 
eminent  in  their  knowledge  of  the  Classics  as  well  as  in  law.  In 
fact,  he  seemed  to  think  that  no  man  could  be  a  great  lawyer 
unless  he  was  an  expert  scholar  in  Greek  and  Latin. 

I  remember  at  one  time,  in  talking  to  us  about  our  future  as 
lawyers,  he  advised  that  we  eschew  all  politics  and  devote  our 
lives  entirely  to  the  study  and  practice  of  our  profession  until  we 
had  acquired  sufficient  wealth  to  live  without  professional  labor, 


28  HARVARD  LAW  SCHOOL. 

and  then  at  this  point  I  remember  very  distinctly,  with  a  sort  of 
twinkle  in  his  eye,  he  said:  "Young  gentlemen,  when  you  have 
acquired  sufficient  competence  to  live  you  will  not  wish  to  engage 
in  the  turmoil,  treachery  and  disappointments  of  political  life." 

One  day  a  man  came  with  Mr.  Story  to  his  lecture  who 
attracted  our  immediate  attention.  He  was  a  giant  of  a  man  and 
seemed  to  me  to  be  seven  feet  high  and  well  proportioned.  He 
sat  near  Mr.  Story  and  listened  attentively  to  the  lecture,  and 
after  it  was  over  made  some  complimentary  remark  to  Story 
about  his  lecture,  and  seemed  in  a  cheerful,  merry,  conversational 
mood.  Some  of  us  were  introduced  to  this  giant,  Jeremiah 
Mason.  It  was  the  only  time  I  ever  saw  Jeremiah  Mason,  but  he 
is  in  my  mind  now  a  giant  in  form  as  he  was  then,  and  has  ever 
since  been  known  to  be  a  giant  in  law. 

President  Tyler  and  his  cabinet  came  to  Boston  to  attend  the 
celebration  of  the  completion  of  the  Bunker  Hill  Monument 
on  June  17,  1843.  Harvard  College  in  all  its  departments,  stu- 
dents and  officers,  were  given  a  prominent  place  in  the  procession, 
and  a  position  directly  in  front  of  Mr.  Webster  and  not  far  from 
him,  at  Bunker  Hill.  Of  that  celebration,  the  monument,  the 
hundred  thousand  people,  the  one  hundred  veterans  of  the  Revo- 
lution, the  beautiful  day,  Mr.  Webster  standing  with  his  back  to 
the  monument,  the  whole  scene  is  photographed,  or  was  photo- 
graphed at  the  time  upon  my  mind,  and  it  is  perfectly  clear  to 
me  to-day,  but  the  words  of  Mr.  Wrebster's  oration,  his  manner 
and  the  effect  upon  the  audience,  are  all  gone  from  me,  except 
that  part  of  his  oration  in  which,  turning  his  face  to  the  monu- 
ment he  said  in  substance,  raising  his  hand  and  pointing  to  the 
monument:  "That  is  the  orator  of  the  day,  and  it  will  continue 
to  speak  to  successive  generations  of  men  as  they  rise  up  before 
it  and  gather  around  it."  Mr.  Webster's  words  and  his  manner, 
as  he  pointed  to  the  monument,  thrilled  everyone.  The  monument 
itself,  every  stone  of  its  two  hundred  and  twenty  feet,  seemed 
alive  and  speaking  to  us.  That  was  a  Websterian  hour ;  that  was 
an  exhibition  of  Mr.  Webster's  power,  seen  and  felt  on  few  other 
occasions  in  his  life.  I  can  never  forget  it,  and  I  never  look  at 
the  monument  but  I  feel  something  of  the  thrill  of  that  Web- 
sterian hour. 

Rufus  Choate,  in  his  eulogy  of  Daniel  Webster,  in  substance, 
said:  "If  a  painter  could  give  us  on  canvas  the  scene  in  the 
United  States  Superior  Court  Room  when  he  made  his  closing 
appeal  for  his  Alma  Mater  in  the  Dartmouth  College  case,  it 
would  be  one  of  the  most  touching  pictures  in  the  history  of  elo- 
quence." 

If  a  painter  could  give  us  on  canvas  the  scene  at  Bunker  Hill 
at  that  supreme  moment,  when  Daniel  Webster,  standing  on  an 
elevated  platform  with  one  hundred  veteran  soldiers  of  the  Revo- 
lution near  to  him  and  one  hundred  thousand  people  gathered  on 
all  sides  of  him,  with  faces  flushed  and  excited,  gazing  at  the 


STORY— GREEN  LEAF  PERIOD.  29 

monument  as  Mr.  \Vcbster  turned  towards  it  and  raising  his  right 
arm,  pointing  to  it,  spoke  with  such  magic  power  as  made  the 
monument  in  itself  move  and  speak;  I  say  if  such  a  scene  could 
be  painted  on  canvas  it  would  be.  not  perhaps,  one  of  the  most 
touching,  but  yet  one  of  the  grandest  and  most  effective  pictures 
in  the  history  of  eloquence.  (  I ) 

Mr.  Legare  of  South  Carolina,  Attorney  General  of  the  United 
States  came  with  the  President  and  the  rest  of  his  Cabinet  to 
attend  this  celebration  and  died  in  Boston  during  this  visit.  Imme- 
diately after  his  death  Judge  Story  came  to  the  lecture  room,  as 
we  supposed  to  give  a  lecture  upon  some  part  of  the  Constitu- 
tion. Instead  of  delivering  the  lecture,  he  delivered  a  eulogy  upon 
Attorney  General  Legare. 

He  gave  a  sketch  of  his  life  and  especially  of  his  great  learning 
in  law  and  his  knowledge  of  the  Classics  and  of  Greek  and  Latin, 

(i)  Daniel  Webster's  oration  on  this  occasion  has  been  also  interest- 
ingly described  by  George  F.  Hoar  (then  a  freshman)  : 

"The  first  time  I  remember  seeing  Daniel  Webster  was  June  17,  1843,  at 
Bunker  Hill.  The  students  of  Harvard  had  a  place  in  the  procession.  We 
marched  from  Cambridge  to  Boston,  three  miles  and  a  half,  and  stood  in 
our  places  for  hours  and  then  marched  over  to  Charlestown.  We  were 
tired  out  when  the  oration  began.  There  was  a  little  wind  which  carried 
the  sound  of  Mr.  Webster's  voice  away  from  the  place  where  we  stood ; 
so  it  was  hard  to  hear  him  during  the  first  part  of  his  speech.  He  spoke 
slowly  and  with  great  deliberation.  There  was  little  in  the  greater  part 
of  that  weighty  discourse  to  excite  a  youthful  auditor ;  but  the  great  thing 
was  to  look  at  the  greater  orator.  Waldo  Emerson,  who  was  there,  said  of 
him : 

'His  countenance,  his  figure  and  his  manners,  were  all  in  so  grand  a 
style  that  he  was  without  effort  as  superior  to  his  most  eminent  rivals  as 
they  were  to  the  humblest.  He  alone  of  all  men  did  not  disappoint  the 
eye  and  the  ear,  but  was  a  fit  figure  in  the  landscape.  There  was  the 
monument,  and  there  was  Webster.  He  knew  well  that  a  little  more  or 
less  of  rhetoric  signified  nothing :  he  was  only  to  say  plain  and  equal 
things,  grand  things  if  he  had  them;  and  if  he  had  them  not,  only  to  ab- 
stain from  saying  unfit  things — and  the  whole  occasion  was  answered  by 
his  presence.' 

He  went  almost  through  his  weighty  discourse  without  much  effect  up- 
on his  auditors  other  than  that  which  Emerson  so  well  described.  But  the 
wind  changed  before  he  finished  and  blew  towards  the  other  quarter  where 
the  boys  stood ;  and  he  almost  lifted  them  from  their  feet  as  his  great 
organ  tones  rolled  out  his  closing  sentences:  'There  shall  arise  from  every 
youthful  breast  the  ejaculation — Thank  God  I  also  am  an  American!'" 

Autobiography  of  Seventy  Years,  by  G.  F.  Hoar. 

See  also  the  amusing  comment  of  John  Quincy  Adams  in  his  diary: 

"June  17 — This  was  the  day  of  the  great  celebration  of  the  Completion 
of  the  monument  on  Bunker  Hill;  and  never  since  the  existence  of  the 
three  hills  was  there  such  a  concourse  of  strangers  upon  their  sides  as  has 
been  assembled  on  the  banks  of  'Majestic  Charles'  this  day.  What  a  name 
in  the  annals  of  mankind  is  Bunker  Hill!  What  a  day  was  the  I7th  of 
June  1775 !  And  what  a  burlesque  upon  them  both  is  an  oration  upon  them 
by  Daniel  Webster,  and  a  pilgrimage  of  John  Tyler  and  his  cabinet  of 
slave  drivers  to  desecrate  the  solemnity  by  their  presence !  And  then  a 
dinner  at  Faneuil  Hall  in  honor  of  a  President  of  the  United  States,  hated 
and  despised  by  those  who  invited  him  to  it,  themselves  as  cordially  hated 
and  despised  by  him." 


30  HARVARD  LAW  SCHOOL. 

and  the  contributions  he  had  made  to  Literature.  The  address 
was  remarkable  for  its  characterization  of  Mr.  Legare  as  a 
scholar  and  a  lawyer.  The  most  surprising  part  of  this  eulogy, 
an  hour  in  length,  was  when  for  several  minutes  in  earnest,  rapid 
delivery  and  with  emphasis  and  eloquence  equal  to  any  part,  he 
quoted  a  whole  page  of  Cicero. 

I  wish  I  could  give  the  closing  sentence  of  this  most  remarkable 
eulogy,  but  it  is  impossible.  In  substance  he  said,  "Mr.  Legare, 
in  addition  to  his  masterful  scholarship  and  achievements  in  liter- 
ature, took  the  Common  Law  under  one  arm  and  the  Civil  Law 
under  the  other  arm,  and  marched  triumphantly  with  both." 

At  the  close  of  the  summer  term  in  1843,  Story  was  requested 
to  lecture  on  the  character  of  some  of  the  distinguished  lawyers 
with  whom  he  had  been  acquainted.  He  acceded  to  this  request, 
and  selected  as  the  subject  of  his  remarks,  William  Pinkney  and 
Chief  Justice  Parsons.  These  two  lectures,  which  were  very 
familiar  in  their  character,  were  reported  by  a  member  of  the 
Senior  class,  and  published  in  the  Law  Reporter. 

October  17,  1843,  Greenleaf  reported  that  the  number  of  stu- 
dents in  the  Law  School  had  increased  to  128,  from  23  States 
and  Territories,  of  whom  only  40  were  from  Massachusetts ;  and 
that  the  number  of  students  was  too  great  to  sit  with  convenience 
in  either  of  the  rooms  in  Dane  Hall.(i)  On  October  25,  he  wrote 
to  President  Quincy,  that  for  four  years  the  seating  capacity  had 
been  exceeded,  and  that  for  six  years  the  shelves  in  the  Law 
Library  had  been  insufficient  to  hold  the  books. 

As  the  funds  of  the  School  were  then  ample,  and  showed  a 

( i )     See  Law  Reporter,  Vol.  VI,  p.  333,  November,  1893. 

"The  Catalogue  of  Harvard  University  for  this  year  contains  the  names 
of  one  hundred  and  twenty  persons  in  the  Law  School.  This,  we  presume, 
is  the  largest  body  ever  gathered  together  in  our  country  for  the  study  of 
the  law.  A  large  number  came  from  distant  parts  of  the  Union ;  and  there 
are  graduates  of  nearly  all  the  colleges  of  the  country.  Yale  College  alone 
has  sent  twelve ;  other  colleges  have  sent  smaller  numbers.  We  observe  the 
names  of  students  from  Alabama,  South  Carolina,  Ohio  and  Louisiana.  It 
is  in  conformity  with  the  desires  of  the  distinguished  Professors,  that  the 
Law  School  is  not  regarded  as  a  local  institution,  teaching  the  law  of  a 
particular  State,  but  as  national  in  its  character,  and  dedicated  to  those 
great  rules  and  principles  of  jurisprudence,  which  are  of  equal  authority 
in  each  and  all  of  the  States.  Some  of  the  technicalities  of  pleading  may 
tail  in  practical  value  in  Louisiana;  but  the  rules  of  commercial  law,  as 
expounded  by  Mr.  Justice  Story,  are  of  vital  importance  in  that  State.  It 
will  be  interesting  to  our  readers  to  know  that  the  Judge  has  been  re- 
stored to  his  former  health,  so  that  he  has  been  enabled  to  resume  his 
arduous  labors,  both  on  the  bench  and  in  the  lecture  room.  His  lectures, 
which  are  the  source  of  so  much  .agreeable  instruction  to  the  students  of 
the  law  school,  attract  the  attention  of  most  strangers  of  distinction  who 
visit  Boston,  anxious  to  catch  the  living  words  from  this  great  jurist."  .  .  . 


STORY— GREENLEAF  PERIOD.  31 

balance  of  over  $20,000,  the  Corporation  voted  October  25,  to 
refer  this  letter  to  the  President,  Judge  Story,  and  the  Treasurer; 
and  on  April  13,  1844,  it  appointed  these  three  persons  a  com- 
mittee with  full  authority  to  cause  Dane  Hall  to  be  enlarged 
according  to  their  discretion. 

This  improvement  was  at  once  begun  in  the  form  of  an  addi- 
tion, at  right  angles  to  the  old  building,  almost  doubling  the  ca- 
pacity of  Dane  Hall.  As  it  was  not  finished  until  late  in  1845  '•> 
and  as  the  number  of  students  continued  to  increase,  the  Corpor- 
ation voted,  February  22,  1845,  to  give  Greenleaf  permission  to 
use  the  Harvard  Hall  lecture  room  for  his  law  lectures. 

Early  in  1844,  an  addition  to  the  course  of  instruction  at  the 
School  was  approved  by  Greenleaf,  which  in  the  light  of  subse- 
quent events,  has  a  startling  significance.  Professor  John  N. 
Webster,  then  Erving  Professor  of  Chemistry,  had  suggested 
that  he  give  to  the  law  students  a  course  on  poisons,  adultera- 
tions, etc. ;  and  on  January  24,  1844,  Greenleaf  wrote  to  him(i)  : 

They  need  instruction  in  the  medical  jurisprudence  of  insanity, 
also  as  well  as  in  the  modes  of  perpetrating  homicide  by  poison 
and  other  secret  means;  and  the  knowledge  of  the  artifices 
employed  by  bad  men  in  adulterating  and  counterfeiting  articles 
of  commerce  is  equally  essential  to  accomplish  a  lawyer  in  his  pro- 
fession. 

The  spring  of  1844  was  notable  in  Washington  for  the  argu- 
ment of  the  famous  case  of  Vidal  v.  Philadelphia  (2  Howard 
127),  involving  the  will  of  Stephen  Girard.  (2) 

This  case  is  of  interest  not  only  for  the  very  able  opinion  deliv- 
ered by  Judge  Story,  but  also  as  an  illustration  of  the  value  of 
the  Harvard  Law  School  Library  to  the  legal  profession  in 
those  days ;  for  one  of  the  authorities  on  which  its  decision  was 
based  was  a  recent  decision  of  Lord  Chancellor  Sugden  (Incor- 
porated Society  v.  Richards,  I  Dom.  and  War.  258),  of  which 
there  was  a  copy  in  the  Harvard  Law  Library,  but  none  in  either 
Philadelphia  or  Washington,  and  to  which  Judge  Story  called 
the  attention  of  the  counsel  for  the  winning  side,  Horace  Bin- 
ney.(3) 

The  case  had  been  first  argued  in  1843,  by  Walter  Jones  against 

(1)  See  Harvard  Coll.  Papers,  2nd  Series,  Vol.  XII. 

(2)  See  The  Will  and  Biography  of  Stephen  Girard,  American  Quar- 
terly Review,  Vol.  XIII   (1833). 

(3)  See  Life  of  Horace  Binney,  by  Charles  C.  Binney. 


32  HARVARD  LAW  SCHOOL. 

John  Sergeant;  but  as  Story  and  two  other  judges  were  absent,, 
it  was  reargued  in  1844  by  Jones  and  Webster  against  Horace 
Binney  and  Sergeant. (i)  As  an  example  of  the  increase  in  legal 
facilities,  it  is  to  be  noted  that  when  a  similar  case  was  decided 
by  Marshall  in  1819  (Baptist  Association  r.  Hart's  Executors,  4 
Wheaton  i),  the  Calendars  of  the  Proceedings  in  Chancery,  from 
which  Binney  in  1843  gleaned  more  than  fifty  precedents  for  his 
contention,  were  not  even  printed ;  and  Marshall  had  positively 
stated  that  there  was  no  trace  whatever  of  any  precedent (2). 

Story  thus  described  the  argument,  in  a  letter  to  his  wife,  Feb. 
7,  1844: 

We  have  been  for  several  days  engaged  in  Court,  in  hearing 
arguments  upon  the  great  case  of  the  Girard  will,  which  involves 
seven  millions  of  dollars ;  the  heirs  insisting  that  the  main  bequest 
for  building  a  college  for  orphans  is  void.  Mr.  Jones,  of  this  city, 
spoke  on  it  nearly  three  days ;  Mr.  Binney,  of  Philadelphia,  has 
been  speaking  on  the  opposite  side  (for  the  city)  nearly  three 
days,  and  has  made  a  most  masterly  argument;  Mr.  Sergeant, 
of  Philadelphia,  is  to  follow  on  the  same  side,  and  the  argument 
is  to  be  concluded  by  Mr.  Webster,  for  the  heirs. 

February  10.  Saturday  evening.  I  was  here  again  interrupted, 
and  for  the  first  time  am  now  able  to  resume  my  pen.  In  the  case 
of  the  Girard  will,  the  arguments  have  been  contested  with 
increasing  public  interest,  and  Mr.  Sergeant  and  Mr.  Binney  con- 
cluded their  arguments  yesterday.  A  vast  concourse  of  ladies 
and  gentlemen  attended  with  unabated  zeal  and  earnest  curiosity 
through  their  speeches,  which  occupied  four  days.  Mr.  Webster 
began  his  reply  to  them  to-day,  and  the  Court-room  was  crowded, 
almost  to  suffocation,  with  ladies  and  gentlemen  to  hear  him. 
Even  the  space  behind  the  Judges,  close  home  to  their  chairs, 


1 i )  "When  the  case  was  carried  up  to  the  Supreme  Court,  Mr.  Binney 
was  joined  with  him  at  Mr.  Sergeant's  request,  and  went  to  England  to 
make  himself  more  familiar  with  the  law  of  charitable  cases.     He  returned 
fully  prepared  for  the  encounter.    Mr.  Binney  was  tall,  large,  well  formed, 
always  well  dressed,  and  an  Apollo  in  many  beauty.     He  spoke  slowly  and 
distinctly ;  his  voice  was  full,  musical  and  well  modulated ;  his  manners  a 
blending  of  dignity,  ease,  suavity  and  high  refinement.  .  .  .  He  spoke  three 
days,  during  which  the  court  room  was  filled  to  its  utmost  capacity  by 
beauty,   talent   and    eminence ;    lawyers    of   eminent    abilities   were   drawn 
from  Richmond,  Baltimore  and  New  York,  to  listen.  .  .  .  Mr.  Sergeant  was 
a  lawyer  of  no  less  ability,  learning  and  eminence  than  Mr.  Binney ;  but  he 
has  not  his  fine  voice  or  imposing  appearance.  He  spoke  two  days.  ...  Mr. 
Webster,  who  made  the  closing  argument  in  the  case,  had  a   Herculean 
task  to  perform.     If  any  one  could  do  it,  he  could;  but  it  was  beyond  his 
power.     He  occupied  the  court  for  three  days,  the  room  the  whole  time 
being  densely  crowded." 

See  Public  Men  and  Events,  by  Nathan  Sargeant,  Vol.  II   (1875). 

(2)  See  Life  of  Horace  Binney,  by  Charles  C.  Binney. 


STORY— GREENLEAF  PERIOD.  33 

presented  a  dense  mass  of  listeners.  He  will  conclude  on  Mon- 
day. The  curious  part  of  the  case  is,  that  the  whole  discussion 
has  assumed  a  semi-theological  character.  Mr.  Girard  excluded 
ministers  of  all  sects  from  being  admitted  into  his  college  as 
instructors  or  visitors ;  but  he  required  the  scholars  to  be  taught 
the  love  of  truth,  morality,  and  benevolence  to  their  fellow-men. 
Mr.  Jones  and  Mr.  Webster  contended  that  these  restrictions 
were  anti-Christian,  and  illegal.  Mr.  Binney  and  Mr.  Sergeant 
contended  that  they  were  valid,  and  Christian,  founded  upon  the 
great  difficulty,  of  making  ministers  cease  to  be  controversalists, 
and  forbearing  to  teach  the  doctrines  of  their  sect.  I  was  not  a 
little  amused  with  the  manner  in  which,  on  each  side,  the  language 
of  the  Scriptures  and  the  doctrines  of  Christianity  were  brought 
in  to  point  the  argument;  and  to  find  the  Court  engaged  'in 
hearing  homilies  of  faith  and  expositions  of  Chrisianity,  with 
almost  the  formality  of  lectures  from  the  pulpit. 

On  February  13,  1844,  John  Quincy  Adams  notes  in  his  diary: 

To  escape  an  hour  or  two  of  soporifics,  left  the  Hall  (of  Repre- 
sentatives) and  went  into  that  where  the  Supreme  Court  were  in 
session  to  see  what  had  become  of  Stephen  Girard's  will  and  the 
scramble  of  lawyers  and  collaterals  for  the  fragments  of  his 
colossal  and  misshapen  endowment  of  an  infidel  charity  school  for 
orphan  boys. 

Webster  had  just  before  closed  his  argument  for  which  it  is 
said,  if  he  succeeds,  he  is  to  have  fifty  thousand  dollars  for  his 
share  of  the  plunder. 

Story's  decision  in  favor  of  the  will,  and  against  Webster's 
argument,  was  generally  supported  by  the  profession  and  espe- 
cially by  Kent,  to  whom  Story  wrote  August  31,  1844: 

I  rejoice  to  know  your  opinion  in  the  Girard  case.  The  Court 
were  unanimous,  and  not  a  single  sentence  was  altered  by  my 
brothers,  as  I  originally  drew  it.  I  confess,  that  I  never  doubted 
on  the  point;  but  it  is  a  great,  a  sincere  comfort  to  have  your 
judgment,  free,  independent,  learned,  on  it.  Mr.  Webster  did  his 
best  for  the  other  side,  but  it  seemed  to  me,  altogether,  an  address 
to  the  prejudices  of  the  clergy. 

Two  cases  in  the  criminal  law  were  decided  in  Massachusetts, 
this  same  year,  in  which  the  Law  School  students  took  special 
interest  and  at  the  trials  of  which  they  attended  in  great  num- 
bers. The  first  was  the  famous  case  of  Commonwealth  v.  Wyman 
(8  Metcalf  247),  which  had  been  twice  tried  in  1843,  ar>d  in 
which  Webster,  Choate,  Franklin  Dexter,  Sidney  Bartlett  and  E. 

3 


34  HARVARD  LAW  SCHOOL. 

Rockwood  Hoar,  had  appeared  as  counsel  for  various  defendants. 
It  involved  the  embezzlement  of  $220,000,  nearly  the  entire 
capital  of  the  Phoenix  Bank  in  Charlestown.  The  sentiment  of 
the  times  (not  so  very  different  from  that  of  the  present  day), 
was  noted  in  a  comment  in  the  Law  Reporter,  (Vol.  II)  : 

The  laxity  which  has  grown  up  in  regard  to  the  public  esti- 
mation of  criminals,  especially  those  who  have  only  been  guilty 
of  fraudulent  appropriation  of  the  funds  of  a  corporation.  .  . 

.  We  may  safely  express  a  hope  that  the  authors  of  this  enor- 
mous fraud  may  meet  with  condign  punishment  .  .  .  and  yet 
these  outrageous  frauds  have  of  late  gone  almost  entirely  unpun- 
ished in  Massachusetts,  and  there  has  seemed  to  be  no  law  what- 
ever for  the  swindling  of  corporations^  i) 

The  other  case  was  the  trial  of  Abner  Rogers  for  murder — 
Commonwealth  v.  Rogers  (7  Mete.  500),  in  which  George  Bemis 
(later  founder  of  the  Bemis  Professorship  of  International  Law) 
and  George  T.  Bigelow  (later  Chief  Justice),  appeared  for  the 
defendant.  (2) 

The  opinion  of  Chief  Justice  Shaw  rendered  in  this  case,  defin- 
ing the  law  of  insanity  as  a  defence,  became  the  foundation  of  the 
judicial,  were  despondent. (3) 

The  year  1844-45  opened  with  156  students  from  21  States, 
including  the  District  of  Columbia  and  Cuba,  being  28  in  excess 
of  the  number  in  any  previous  class.  Story  had  for  some  years 
intended  to  resign  from  the  Supreme  Court  Bench ;  and  he  hoped 
to  do  this  at  the  close  of  Tyler's  administration,  in  the  full  expec- 
tation that  Henry  Clay  would  be  the  next  President,  and  that 
his  successor  in  the  Court  might  accord  with  his  ideas.  The 
election  of  Polk  was  a  severe  disappointment.  Story  was  now 
sixty-five  years  old,  the  only  surviving  member  of  the  "old 
Court" ;  and  his  views  of  the  trend  of  events,  political  and 
judicial,  were  despondent (2). 

(1)  See    Autobiography    of   Seventy    Years,   by     G.     F.     Hoar;     and 
also  interesting  articles  in  the  Law  Reporter,  Vols.  VI,  VII,  VIII. 

Argument  of  Daniel  Wells,  Esq.,  at  Lowell,  Nov.  1843,  before  the  Hon. 
Charles  Allen,  Judge  of  the  C.  C.  Pleas  ,(1844). 

(2)  See    Review   of    the   Rogers    Trial   in    Law   Reporter,   Vol.    VII, 
(1844),  Vol.  X  (1847). 

(3)  His    friend,   James    Kent,   shared    in    these    views  and    wrote    the 
following  to  Story  (See  Mass.  Hist.  Soc.  Proc.,  2nd  Series,  Vol.  XIV)  : 

•'April  18,  1844 — I  look  upon  the  administration  of  our  general  govern- 
ment as  rotten  to  the  core.  Nothing  can  be  so  degrading  and  detestable 
as  the  conduct  of  the  weak,  vain,  perfidious  wretch  that  at  present  wields 
power  to  the  dismay  and  scourge  of  the  nation." 


STORY— GREENLEAF  PERIOD.  35 

On  April  25,  1845,  ne  wrote: 

Although  my  personal  position  and  intercourse  with  my 
brethren  on  the  Bench  has  always  been  pleasant,  yet  I  have  been 
long  convinced  that  the  doctrines  and  opinions  of  the  "old  Court" 
were  daily  losing  ground,  and  especially  those  on  great  constitu- 
tional questions.  New  men  and  new  opinions  have  succeeded. 
The  doctrines  of  the  Constitution,  so  vital  to  the  country,  which 
in  former  times  received  the  support  of  the  whole  Court,  no 
longer  maintain  their  ascendency.  I  am  the  last  member  now 
living,  of  the  old  Court,  and  I  cannot  consent  to  remain  where  I 
can  no  longer  hope  to  see  those  doctrines  recognized  and  enforced. 
For  the  future  I  must  be  in  a  dead  minority  of  the  Court,  with  the 
painful  alternative  of  either  expressing  an  open  dissent  from  the 
opinions  of  the  Court,  or,  by  my  silence,  seeming  to  acquiesce  in 
them.  The  former  course  would  lead  the  public,  as  well  as  mj 
brethren,  to  believe  that  I  was  determined,  as  far  as  I  might,  to 
diminish  the  just  influence  of  the  Court,  and  might  subject  me 
to  the  imputation  of  being,  from  motives  of  mortified  ambition, 
or  political  hostility,  earnest  to  excite  popular  prejudices  against 
the  Court.  The  latter  course  would  subject  me  to  the  opposite 
imputation,  of  having  either  abandoned  my  old  principles,  or  of 
having,  in  sluggish  indolence,  ceased  to  care  what  doctrines  pre- 
vailed. Either  alternative  is  equally  disagreeable  to  me,  and 
utterly  repugnant  to  my  past  habits  of  life,  and  to  my  present 
feelings.  I  am  persuaded  that  by  remaining  on  the  Bench  I  could 
accomplish  no  good,  either  for  myself  or  for  my  country. 

I  meditate,  therefore,  to  fall  back  on  my  Law  Professorship, 
and  to  devote  the  residue  of  my  life  to  its  duties,  hoping  thereby 
to  sustain  its  influence  and  its  character.  I  believe  the  Univer- 
sity will  be  ready  to  allow  me  any  reasonable  compensation  I 
desire. 

In  the  midst  of  this  difficulty,  Story  was  approached  with  the 
suggestion  of  the  offer  of  the  Presidency  of  Harvard  College. 
Josiah  Quincy  had  tendered  his  resignation  by  letter  of  March  19. 
1845(1)  ;  and  the  question  of  his  successor  was  of  great  moment 


"June  17,  1845 — Sad  event  of  your  retirement  from  the  Bench.  The 
loss  will  be  immense,  and  altogether  and  in  any  general  times,  wholly 
irreparable — what  a  'melancholy  mass'  it  (the  Bench)  presents!  I  would 
not  sit  on  that  bench  for  all  the  world.  I  do  not  regard  their  decisions 
(yours  always  excepted)  with  much  reverence,  and  for  a  number  of  the 
associates  I  feel  habitual  scorn  and  contempt." 

(i)  Edmund  Quincy,  in  his  Memoir  of  Josiah  Quincy,  says: 
"When  he  accepted  the  Presidency,  it  was  on  the  express  understanding 
with  the  Corporation  that  he  should  not  be  asked  to  stay  after  the  ex- 
piration of  four  years,  if  he  should  wish  then  to  end  his  relations  with  the 
University.  He  had  voluntarily  stayed  four  times  the  stipulated  term. 
He  had  more  than  passed  the  appointed  age  of  man,  yet  was  not  his  eye 
dim  nor  his  strength  abated.  There  was  no  apparent  reason  why  he  might 


36  HARVARD  LAW  SCHOOL. 

to  the  Law  School.  For,  as  Edward  Everett,  on  whom  the  final 
choice  fell,  later  said(i)  :  it  was  "the  measures  adopted  under 
the  active  advisement  and  superintendence"  of  Quincy  by  which 
the  School  had  been  "immediately  raised  to  the  position  which  it 
has  ever  since  maintained,  at  the  head  of  the  law  schools  of  the 
country.  Mr.  Quincy's  own  professional  studies  and  his  long 
participation  in  political  and  public  life  led  him  to  take  a  deep 
interest  in  its  prosperity,  as  a  school  at  once  of  jurisprudence  and 
statesmanship,  and  to  watch  over  it  with  an  ever  vigilant  and 
fostering  care  which  a  President  of  different  training  and  ante- 
cedents could  not  have  been  expected  to  bestow." 

Story  refused  to  be  considered,  however,  deeming  his  Professor- 
ship "far  more  agreeable  and  useful  to  me,  and  of  quite  as  much 
importance  and  dignity." 

Thereupon  the  Corporation  determined  to  make  such  arrange- 


not  continue  fit  for  the  office  for  ten  years  longer.  But  he  was  resolved 
that  he  would  leave  his  post  when  the  wish  was  yet  general  that  he 
should  remain  at  it,  and  before  there  could  be  the  faintest  suspicion  that 
his  powers  were  beginning  to  fail  him.  Besides,  Mr.  Edward  Everett  was 
just  returned  from  his  residence  at  the  English  court.  The  general  voice 
of  the  graduates  and  of  the  public  named  him  as  the  proper  person  to 
succeed  to  the  Presidency,  whenever  my  father  should  vacate  it.  Mr. 
Everett  was  aho  my  father's  first  and  last  choice.  After  Dr.  Kirkland's 
resignation,  and  before  he  himself  had  been  thought  of  for  the  office,  Mr. 
Everett  was  his  favorite  candidate,  and  it  was  only  the  consciousness  that 
it  was  not  to  be  expected  that  so  young  and  so  able  a  man  would  be 
content  to  settle  himself  permanently  in  an  academic  retirement,  that  pre- 
vented him  from  pressing  the  nomination  at  that  time.  But  now  that 
Mr.  Everett  had  run  the  career  of  public  honors,  after  ten  years  in  Con- 
gress, four  in  the  Governor's  chair,  and  as  many  in  the  most  brilliant 
diplomatic  position  in  Europe,  it  seemed  as  if  the  fitting  time  had  come 
when  he  could  bring  his  honors,  his  long  experience,  his  consummate 
scholarship,  and  his  rare  gift  of  speech,  and  lay  them  cheerfully  at  the 
feet  of  his  Alma  Mater.  My  father  resolved  not  to  stand  in  the  way  of 
one  whom  he  esteemed  the  man  of  men  for  the  office  he  he'd.  He  took 
his  measures  accordingly,  no  one  knowing  his  intention,  excepting  his 
family  at  Cambridge,  until  the  moment  of  action.  He  called  a  meeting 
of  the  Corporation  in  Boston,  and  took  Judge  Story  along  with  him  in 
his  carriage,  who  had  not  a  suspicion  of  the  purpose  for  which  the  meet- 
ing was  called.  At  the  meeting  he  gave  in  his  resignation  of  his  office  to 
the  Board,  to  take  effect  after  the  next  Commencement.  The  Fellows 
were  entirely  taken  by  surprise,  and  at  first  utterly  refused  to  entertain 
the  proposition.  At  least,  they  would  not  accept  his  resignation  until  he 
had  had  some  further  time  to  reflect  upon  it.  But  he  had  anticipated  this 
action,  and  taken  his  measures  accordingly.  That  morning  he  had  given, 
in  confidence,  a  copy  of  his  letter  of  resignation  to  Mr.  Hale,  of  the 
Daily  Advertiser,  with  directions  to  have  it  appear  the  next  morning. 
The  letter  was  already  in  type.  It  was  too  late  to  recall  it.  Expostula- 
tion would  be  only  a  waste  of  breath.  So  his  resignation  was  perforce 
accepted  according  to  its  terms." 

(i)     See  address  on  Commencement  Day;  July  20,   1864,  in  Everett's 
Orations,  Vol.  IV. 


STORY— GREEN  LEAF  PERIOD.        37 

ments  as  to  salary  as  to  allow  Story  to  give  his  whole  time  to  his 
Law  School  work;  and  on  April  26,  1845,  on  recommendation 
of  a  Committee  consisting  of  Chief  Justice  Shaw  and  the  Treas- 
urer, the  Corporation  voted  to  allow  him  a  salary  of  $4000,  the 
report  of  the  Committee  stating:  "If  objected  that  this  compen- 
sation is  high  and  unprecedented,  and  that  it  may  operate  injuri- 
ously as  a  precedent  hereafter,  we  think  it  a  sufficient  answer, 
that  the  occasion  is  unprecedented  and  extraordinary."  To  this 
Story  replied,  on  May  15,  1845  : 

I  beg  to  express  my  personal  and  grateful  acknowledgment 
through  you  to  the  Corporation  for  this  distinguished  mark  of 
their  favor,  and  that  I  now  accept  the  proposal,  to  go  into  effect 
at  the  commencement  of  the  academical  year  in  August  next. 

I  shall  resign  my  office  as  Justice  of  the  Supreme  Court  as 
soon  as  my  present  Circuit  is  accomplished,  which  I  feel  under 
obligations  to  complete.  I  had  hoped  that  it  might  be  finished  by 
the  first  day  of  July  next,  but  from  present  appearances  it  is  most 
probable  that  it  will  occupy  some  weeks  more.  At  all  events,  I 
shall  resign  my  office  early  enough  to  devote  my  whole  time  and 
services  to  the  Law  School  at  the  commencement  of  the  next 
academical  year.  On  my  part,  therefore,  the  proposal  may  be 
deemed  absolutely  accepted. 

It  will  be  my  earnest  effort  to  justify  the  liberal  confidence 
thus  reposed  in  me  by  the  Corporation,  by  devoting  my  future 
days  to  the  advancement  of  the  Law  School  with  an  unfaltering 
diligence,  and  if  permanent  success  should  crown  my  labors,  I 
shall  deem  it  the  highest  reward  which  I  ought  to  seek  or  de- 
sire^ i) 


(i)  Chief  Justice  Shaw,  in  his  elaborate  Report  to  the  Corporation, 
of  April  1845  (Harv.  Coll.  Papers,  2nd  Series,  Vol.  XII),  after  stating 
fully  the  need  and  value  of  legal  education,  said : 

"An  American  law  school  .  .  .  should  embrace  a  large  and  liberal  system 
of  instruction  in  the  science  of  jurisprudence,  not  for  one  State  or  section 
of  the  country  only,  but  for  the  whole  of  the  United  States.  Thus  fitted 
for  general  usefulness,  it  is  desirable  that  it  should  be  attended  by  young 
men  from  various  parts  of  the  country  who,  having  completed  their 
classical  education,  either  here  or  elsewhere,  are  animated  by  a  laudable 
ambition  to  obtain  largely  and  wisely  the  best  means  of  professional 
training,  uninfluenced  by  sectional  preferences.  Such  a  union  of  edu- 
cated young  men,  engaged  together  in  a  course  of  liberal  professional 
studies,  men  who  afterwards  distribute  over  all  the  United  States,  may 
be  expected  to  have  conspicuous  and  influential  places  in  Society,  and 
may  be  looked  to  as  means  of  Union  and  harmony  tending  to  the  ad- 
vancement of  the  common  and  general  interests  of  the  whole  people. 

In  this  view,  it  is  obviously  desirable  to  obtain  for  the  offices  of  gov- 
ernment and  instruction  in  the  Law  School,  gentlemen  of  high  talents, 
of  great  learning  and  experience  and  of  commanding  reputation,  men 
who  have  an  ardent  love  for  the  profession  they  have  adorned,  who,  by 
their  example  as  well  as  by  their  teaching,  can  encourage  young  men  to 


38  HARVARD  LAW  SCHOOL. 

The  new  addition  to  Dane  Hall  being  now  completed,  the 
students  determined  to  celebrate  the  event ;  and  Francis  E.  Parker 
(1843-46)  of  Boston,  Anthony  A.  Penniston  (1843-45)  of  New 
Orleans,  and  Anson  Burlingame  (1844-46)  of  Detroit,  were 
chosen  a  Committee  to  take  charge.  Accordingly,  they  invited 
the  Alumni  and  members  of  the  Bar  generally  to  a  festival  to  be 
held  on  July  3,  1845 ;  and  Story  wrote  to  Kent,  June  10 : 

Sixteen  years  have  elapsed  since  the  Law  School  was  reor- 
ganized, upon  the  accession  of  Mr.  Quincy  to  the  Presidency 
of  Harvard  College,  and  we  have  just  completed  a  very  large 
addition  to  the  Dane  Law  College,  for  a  library  and  a  lecture- 
room.  The  law  students  have  concluded  to  celebrate  the  occa- 
sion by  a  discourse,  to  be  delivered  by  the  Hon.  Rufus  Choate, 
and  a  public  dinner  in  the  new  Library,  at  which  President 
Quincy,  and  other  distinguished  gentlemen,  Judges  and  lawyers, 
will  be  present.  Indeed,  it  is,  in  some  sort,  a  farewell  dinner 
to  President  Quincy,  whose  resignation  takes  place  at  the  ensu- 
ing Commencement.  We  are  all  of  us  most  anxious  that  you  should 
be  present  with  us  on  this  most  interesting  occasion,  probably 
the  last  great  professional  meeting  of  your  life.  At  your  age, 
we  should  not  expect,  or  impose  upon  you  the  task  of  making  a 
speech  at  the  table,  and  we  shall  all  understand,  that  if  you  will 
favor  us  with  your  company,  you  shall  be  exempted  from  any 
effort  of  this  sort.  Under  these  circumstances,  we  earnestly 
hope  that  you  will  do  us  the  honor  to  give  your  attendance,  that 
you  may  witness  the  prosperity  of  the  Law  in  that  School,  where 
your  Commentaries  constitute  one  of  the  leading  works  of  instruc- 
tion, every  year.  Already,  the  Law  School  has  numbered  up- 
wards of  eleven  hundred  students  within  the  last  sixteen  years, 
and  we  have  now  about  one  hundred  and  forty  at  the  School. 

I  shall  be  most  happy  to  have  you  come  and  stay  at  my  house 
in  Cambridge,  where  you  will  be  received  with  all  welcome,  and 


struggle  successfully  with  the  difficulties  which  attend  the  early  study  of 
jurisprudence. 

Such  a  guide,  example,  and  instructor,  has  Mr.  Justice  Story  eminently 
proved  himself  to  be.  ... 

He  has  been  happy  in  having  the  assistance  and  co-operation  of  a 
learned  and  efficient  permanent  Professor;  yet  we  are  confident  that  his 
own  brilliant  talents,  enlightened  zeal  and  indefatigable  exertions,  have 
done  much  to  promote  the  efficiency  and  success  of  the  School  and  place 
it  on  the  high  eminence  which  it  has  attained.  We  are  satisfied  that  he 
has  devoted  more  thought  and  earnest  personal  effort  to  the  instruction 
of  the  students  than  could  reasonably  have  been  expected  from  him, 
considering  the  circumstances  under  which  he  accepted  the  appointment. 

The  resources  of  the  School  are  now  large  and  they  steadily  in- 
creasing. This  increase  is  attributable,  we  think,  in  a  considerable  degree 
to  the  reputation  it  has  acquired  and  the  advantages  it  has  enjoyed  in  the 
useful  labors  of  Judge  Story. 


STORY— GREENLEAF  PERIOD.  39 

have  a  comfortable  chamber,  and  quiet  hours  for  yonr  accom- 
modation. 

This  is  the  last  year  I  shall  be  a  Judge  of  the  Supreme  Court, 
and  in  the  early  autumn  my  resignation  will  be  given  in.  Hence- 
forth, I  shall  devote  the  residue  of  my  life  and  energies  to  the 
Law  School  exclusively.  I  wish  you,  however,  not  to  give  pub- 
licity to  this  fact  at  present,  as  I  mean,  at  a  suitable  time,  as 
soon  as  my  summer  Circuit  is  finished,  and  the  business  of  it  is 
despatched,  to  announce  it  publicly,  under  my  own  name,  in  the 
newspapers. 

My  work  on  Promissory  Notes  is  nearly  through  the  press, 
and  will  all  be  published  in  this  month.  .  .  . 

The  celebration  will  be  on  Wednesday,  the  3d  day  of  July. 

\ 

The  occasion  proved  to  be  one  of  great  hilarity.    Rufus  Choate 

delivered  a  finished  and  eloquent  oration  on  The  Profession  of 
the  Lore  as  an  Element  of  Conservatism  in  the  State;  after  which 
a  dinner  was  served  in  the  Library  room  of  the  School.  Judge 
Story  presided,  and  after  making  an  address,  gave  the  first  toast 
"The  memory  of  Nathan  Dane — the  author  of  the  ordinance  of 
1787 — the  author  of  the  great  Abridgment  of  American  Law — 
the  founder  of  the  Law  School — glory  enough  for  one  man  in 
one  age."  Choate  responded  to,  "The  Orator  of  the  Day.  A 
statesman,  while  he  is  a  lawyer,  and  because  he  is  a  lawyer.  He 
is,  himself,  the  great  sublime  he  draws."  Greenleaf  responded  to 
"The  Law — a  vigorous  branch  of  the  tree  of  knowledge — its  life 
is  sure  whilst  it  bears  one  green  leaf ;"  and  gave  "The  institution 
of  our  country,  safe  in  the  hands  of  the  rising  generation  of  law- 
yers." Story  retorted  with  "Professor  Greenleaf — We  have  the 
best  evidence  of  his  law  in  his  law  of  evidence." 

Other  speakers  were  President  Quincy;  Jeremiah  Mason  for 
the  Massachusetts  Bar;  Judge  John  Davis  of  the  Class  of  1781 ; 
Judge  Pitnam  of  Rhode  Island;  Judge  Samuel  Putnam  for  the 
Essex  Bar;  George  S.  Hillard  ,as  one  of  the  oldest  members  of 
the  School  present ;  Charles  S.  Daveis  for  the  Maine  Bar ;  and 
Judge  Williams,  late  Chief  Justice  of  the  Court  of  Common 
Pleas,  who  gave  the  following  toast :  "The  pupils  of  the  Dane 
Law  School — may  they  ever  bear  in  mind  the  solemn  considera- 
tion that  of  those  to  whom  much  is  given,  of  them  will  much 
be  required." 

Letters  were  read  from  John  Quincy  Adams,  William  Anthon 
of  New  York  and  Dr.  Oliver  Wendell  Holmes,  the  latter  giving, 


40  HARVARD  LAW  SCHOOL. 

in  medical  terms,  a  recipe  for  a  judicious  mixture  of  law  and 
medicine.  ( i ) 

Story  was  now  enthusiastic  to  take  up  his  new  work  in  the 
School.  He  was  delighted  with  his  rooms  in  the  new  addition. 
He  was  urgent  to  finish  his  Circuit  Court  duties  and  wipe  his 
docket  clean,  so  that  he  might  return  with  entire  freedom  to  his 
beloved  pupils.  Such,  however,  was  not  to  be  his  fate.  The 
end  of  his  busy  and  happy  life  was  at  hand. 

On  the  evening  of  Commencement  day,  on  his  return  home 
after  the  exercises,  he  said  to  his  wife,  according  to  his  son's 
account : 

"I  have  been  a  lucky  fellow.  There  are  few  persons  whose 
life  has  been  so  happy  as  mine."  "Has  it  really  then  been  so 
happy?"  asked  my  mother.  "Yes,  very  happy,"  he  answered, 
"very  happy."  "And  yet  we  have  met  with  great  losses.  Think 
of  the  children  we  have  lost,"  suggested  she.  "I  remember 
them,"  he  answered;  "those  sorrows  were  very  sharp;  but  who 
can  say  what  might  have  happened  had  they  lived.  I  believe 
that  God,  in  his  good  providence,  has  ordered  all  things  aright. 
Besides,  I  have  had  great  compensations  for  these  griefs.  My 
fame,  and  the  praise  that  has  been  so  kindly  given  to  me,  have 
been  a  great  delight.  What  right  had  I  to  expect  the  prosperity 
and  success  that  I  have  met  with  in  life?" 

It  was  only  a  few  weeks  later  that,  after  a  brief  illness,  he 
died,  at  his  home  in  Cambridge,  September  10,  1845,  in  the  sixty- 
sixth  year  of  his  age. 

His  death  came  as  a  personal  affliction  to  the  people  of  Cam- 
bridge, his  students,  and  to  the  entire  Bar. 

On  the  day  of  his  funeral,  September  12,  all  the  shops  of 
Cambridge  were  closed,  and  the  entire  membership  of  the  School, 
all  the  leading  citizens  of  the  town  and  of  Boston,  and  most  of 
the  Suffolk  Bar,  followed  his  hearse  to  Mount  Auburn. 

On  September  n,  at  a  meeting  attended  by  every  member  of 
the  School,  these  resolutions  were  adopted : 

Resolved,  that  we  receive  the  sad  intelligence  of  the  death  of 
Mr.  Justice  Story  with  the  profoundest  sorrow,  and  that  it  is  our 
duty  as  well  as  our  only  satisfaction  to  pay  some  tribute  of  re- 
spect to  the  memory  of  a  man,  whom  all  have  regarded  with 
admiration  for  his  brilliant  powers  and  unequalled  learning ;  and 
whom  we  must  ever  remember  for  those  personal  qualities  which 


(i)     See  Laiv  Reporter,  Vol.  VIII,  for  full  account. 


STORY— GREENLEAF  PERIOD.  41 

make  us  regret  his  death,  as  the  loss  of  an  instructor  and  a 
friend;  for  those  generous  principles  and  that  natural  ardor 
which  lent  to  his  teachings  the  glow  of  conversation ;  for  a 
temper  equal,  placable,  and  gentle,  almost  beyond  example ;  for 
his  affectionate  and  ready  sympathy ;  and  for  that  open  and  genial 
benevolence  which  made  his  presence  a  delight,  and  which  leaves 
the  memory  of  him,  without  one  kind  action  omitted  or  one 
word  to  be  recalled. 

Resolved,  that  we  wear  crepe  on  the  left  arm  for  the  space 
of  thirty  days,  and  that  Professor  Greenleaf  be  requested  to 
deliver  a  eulogy  on  Judge  Story  before  the  members  of  the 
School  at  such  time  as  he  may  designate. 

Resolved,  that  a  commmittee  be  appointed  to  consider  and  re- 
port on  the  expediency  of  procuring  a  painting,  bust,  statue,  or 
other  memorial  of  Judge  Story,  on  behalf  of  the  Law  School. 

Resolved,  that  these  resolutions  be  communicated  to  the  family 
of  the  deceased,  with  the  expression  of  our  sympathy  for  their 
sudden  and  irreparable  bereavement. 

Resolved,  that  these  resolutions  be  forwarded  to  the  Daily 
Advertiser  (Boston),  the  Tribune  (New  York),  and  the  Na- 
tional  Intelligencer  (Washington). 

A.  Burlingame,  President. 

M.  G.  Cobb,  Secretary. 

At  a  meeting  of  the  Suffolk  Bar,  held  in  the  United  States 
Circuit  Court  room  in  Boston,  on  the  day  of  the  funeral,  resolu- 
tions prepared  by  George  S.  Hillard  and  Charles  Sumner,  were 
presented  by  Daniel  Webster  with  impressive  remarks.  Richard 
Henry  Dana  Jr.,  in  his  diary,  thus  described  the  scene : 

Sept.  12.  Great  meeting  of  the  Bar  on  the  occasion  of  the 
death  of  Judge  Story.  Never  did  the  Bar  appear  in  such 
strength,  and  rarely  have  I  known  a  more  impressive  scene.  .  . 
Probably  not  a  lawyer  in  the  city  was  absent  who  had  the  physical 
power  to  come.  More  than  half  the  younger  members  had  been 
pupils  of  the  judge.  Among  the  older  were  faces  which  were 
unknown  to  the  junior  members  of  the  Bar,  which  had  not  been 
seen  in  court  for  twenty  years.  Webster  moved  the  resolutions 
in  a  dignified  and  feeling  speech.  Old  Judge  Davis  seconded 
them.  Then  the  venerable  Jer.  Mason  moved  a  resolution  that 
Mr.  Webster  be  requested  to  prepare  a  eulogy,  which  Judge 
Sprague  seconded.  Chief  Justice  Shaw  presided. 

Sepember  18,  1845,  the  sixty-sixth  anniversary  of  Story's 
birth,  Professor  Greenleaf  delivered,  at  the  request  by  formal 
votes  of  the  Corporation  and  of  the  Law  School  students,  a 


42  HARVARD  LAW  SCHOOL. 

noble,  impartial,  and  finished  eulogy  on  his  life  and  character. ( i ) 
Of  this  occasion  Dana  wrote: 

Professor  Greenleaf  pronounced  a  discourse  upon  Judge  Story 
before  the  Law  School  and  the  University.  His  audience,  beside 
ladies  and  strangers,  consisted  of  nearly  all  the  officers  and  stu- 
dents of  the  college,  over  a  hundred  law  students,  and  a  large 
proportion  of  the  Boston  Bar.  The  discourse  was  written  in  a 
simple,  earnest  and  feeling  manner,  and  delivered  in  a  correspond- 
ing manner.  I  never  saw  more  fixed  attention.  When  he  closed, 
every  man  seemed  to  move  in  his  seat  for  the  first  time. 

The  last  time  I  ever  saw  that  most  amiable,  single-hearted  and 
industrious  of  men,  Judge  Story,  was  in  his  own  court.  During 
an  interval  in  an  argument  I  stepped  up  to  the  bench  to  ask 
whether  I  should  make  a  motion.  But  this  was  not  enough  for 
him.  He  could  not  meet  a  pupil  without  a  greeting.  He  moved 
from  his  seat,  his  face  beamed  with  kindness,  and  he  shook  me 
by  the  hand  in  the  most  cordial  manner,  and  then  listened  to  my 
business.  I  believe  this  was  the  last  day  he  sat  in  court.  If  not 
the  last  it  was  near  it,  for  his  death  was  about  a  fortnight  after. 

After  the  delivery  of  the  eulogy,  the  Law  Students  held  a 
meeting  on  September  18  and  adopted  the  following  resolutions : 

Resolved,  that  the  thanks  of  the  Law  School  be  presented  to 
Professor  Greenleaf  for  his  able  and  excellent  discourse  on  the 
life,  character  and  services  of  Mr.  Justice  Story,  and  that  a  com- 
mittee be  appointed  to  request  a  copy  of  the  same  for  publica- 
tion. 

Resolved,  that  Messrs.  Charles  E.  Hooker,  James  H.  Morton 
and  Edward  H.  Welch  be  that  committee. 

In  accordance  with  the  request  the  address  was  later  pub- 
lished. The  Laiv  Reporter,  in  a  review  of  Greenleaf's  eulogy, 
said: 

Few  men  have  ever  lived,  more  worthy  of  unqualified  and 
unalloyed  eulogium  than  Judge  Story.  His  foibles  were  as  few 
and  as  slight  as  the  lot  of  humanity  will  permit;  and  they  were 
lost  in  a  blaze  of  gifts,  virtues  and  excellencies.  .  .  .  Pro- 
fessor Greenleaf's  discourse  is  remarkable  for  its  simplicity  and 
quietness  of  tone.  It  is  entirely  free  from  the  defects  of  ex- 
travagant and  indiscriminate  praise.  .  .  .  It  is  calm  and  con- 
scientious. His  love  and  reverence  for  his  departed  friend  seem 
to  have  imposed  it  upon  him  as  a  sacred  duty  to  exaggerate  noth- 
ing and  to  overstate  nothing. 

(i)  The  eulogy  was  largely  taken  from  an  article  written  by  Green- 
leaf  in  the  National  Portrait  Gallery. 


STORY— GREENLEAF  PERIOD.  43 

While  Judge  Story  made  no  pecuniary  bequest  to  the  College 
or  to  the  Law  School,  his  ever  present  thought  of  it  was  displayed 
in  his  will : 

I  resign  my  soul  into  the  hands  of  Almighty  God,  in  humble 
reliance  upon  his  infinite  goodness  and  wisdom  and  mercy,  and 
in  a  firm  belief  of  the  resurrection  from  the  dead  and  a  life  ever- 
lasting. .  .  . 

My  worldly  estate  is  not  large,  partly  because  I  have  not  felt 
as  strongly  as  some  persons  the  importance  of  wealth  to  happi- 
ness, and  partly  from  my  desire  (which,  upon  this  solemn  occa- 
sion, it  is  not  necessary  to  conceal,)  to  administer  charity  to 
those  who,  in  the  course  of  Providence,  have  been  placed  in  a 
state  of  dependence  upon  my  bounty.  .  .  . 

I  give  to  the  President  and  Fellows  of  Harvard  College,  to 
their  use  and  behoof  forever,  the  following  articles,  viz. : — The 
portrait  of  my  late  excellent  friend,  Mr.  Chief  Justice  Marshall, 
by  Harding,  which  was  presented  to  me  by  the  Chief  Justice 
himself ;  the  portrait  of  my  late  excellent  friend,  Mr.  Justice 
Washington ;  my  own  portrait,  by  Stuart ;  the  busts  of  Mr. 
Chief  Justice  Marshall,  and  also  of  myself,  by  Frazee;  the  bust 
of  myself,  by  my  son,  William  W.  Story,  with  his  consent ; 
the  prints  of  Lord  Eldon  and  Lord  Stowell,  presented  to  me 
by  the  latter,  with  their  glasses  and  frames;  two  volumes  from 
and  belonging  to  the  library  of  President  Washington,  with 
his  autograph,  and  other  written  memorandums, — one  being 
President  Washington's  copy,  and  remarks  thereon,  of  Mr. 
Monroe's  View  of  the  Conduct  of  the  Executive,  (edit.  1797)  ; 
the  other  Watts's  Views  of  the  Seats  of  the  Nobility  and  Gentry 
in  England,  (edit.  1779.)  These  books  were  presented  to  me 
by  Mr.  Justice  Washington,  as  literary  curiosities  of  no  small 
value.  I  ask  the  President  and  Fellows  of  Harvard  College  to 
accept  these  as  memorials  of  my  reverence  and  respect  for  that 
venerable  institution,  at  which  I  received  my  education. 

I  hope  it  may  not  be  improper  for  me  to  add,  that  I  have 
devoted  myself  as  Dane  Law  Professor  for  the  last  thirteen  years 
to  the  labors  and  duties  of  instruction  in  the  Law  School,  and 
have  always  performed  equal  duties,  and  to  an  equal  amount, 
with  my  excellent  colleagues,  Mr.  Professor  Ashmun,  and  Mr. 
Professor  Greenleaf,  in  the  Law  School.  When  I  came  to  Cam- 
bridge and  undertook  the  duties  of  my  Professorship,  there  had 
not  been  a  single  student  there  for  the  preceding  year.  There 
was  no  Law  Library ;  but  a  few  and  imperfect  books  being  there. 
The  students  have  since  increased  to  a  large  number,  and  for  six 
years  last  past  have  exceeded  one  hundred  a  year.  The  Law 
Library  now  contains  about  six  thousand  volumes,  whose  value 
cannot  be  deemed  less  than  twenty-six  thousand  dollars.  My 
own  salary  has  constantly  remained  limited  to  one  thousand  dol- 


44  HARVARD  LAW  SCHOOL. 

lars,  (a  little  more  than  the  interest  of  Mr.  Dane's  donation.) 
I  have  never  asked  or  desired  an  increase  thereof,  as  I  was 
receiving  a  suitable  salary  as  a  Judge  of  the  Supreme  Court  of 
the  United  States,  while  my  colleagues  have  very  properly 
received  a  much  larger  sum,  and  of  late  years  more  than  double 
my  own.  Under  these  circumstances,  I  cannot  but  feel  that 
I  have  contributed  towards  the  advancement  of  the  Law  School 
a  sum  out  of  my  earnings,  which,  with  my  moderate  means,  will 
be  thought  to  absolve  me  from  making,  what  otherwise  I  cer- 
tainly should  do,  a  money  legacy  to  Harvard  College,  for  the 
general  advancement  of  literature  and  learning  therein. 

Immediately  after  Story's  death  there  was  a  general  public 
feeling  that  some  official  recognition  should  be  made  of  his  great 
services  to  the  University.  This  was  finally  embodied  in  a  re- 
port made  by  a  Committee  appointed  in  February,  1849,  by  the 
Board  of  Overseers  to  visit  the  Law  School,  consisting  of  Hon. 
Peleg  Sprague,  Hon.  William  Kent,  Charles  Sumner,  Hon.  Albert 
H.  Nelson,  and  Peleg  W.  Chandler.  This  report,  on  November 
7,  1849,  drawn  up  by  Charles  Sumner,  after  stating  the  history 
and  condition  of  the  School,  thus  proceeds : 

In  reviewing  the  history  of  the  School,  the  committee,  while 
remembering  with  grateful  regard  all  its  instructors,  pause  with 
veneration  before  the  long  and  important  labors  of  Story.  In 
the  meridian  of  his  fame  as  a  judge,  he  became  a  practical 
teacher  of  jurisprudence,  and  lent  to  the  University  the  lustre 
of  his  name.  .  .  . 

It  appears,  from  the  books  of  the  Treasurer,  that  the  sums 
received  from  students  in  the  Law  School  during  the  sixteen 
years   of   his   professorship,    amounted   to   $105,000.      Of   this 
sum,  only  $47,200  were  spent  in  salaries  and  other  current  ex- 
penses of  the  School.     The  balance,  amounting  to  $57,200,  is 
represented  by  the  following  items,  viz. : 
Books  purchased  for  the  Library  and  for  students,  in- 
cluding about  $1,950  for  binding,  and  deducting  the 

amount  received  for  books  sold $29,000 

For  the  enlargement  of  the  Hall,  containing  the  library 

and  lecture-rooms,  in  1844-45 12,700 

The   Fund   remaining  to   the  credit  of  the   School   in 
August,  1845   15.500 


$57,200 

Thus  it  appears  that  the  Law  School,  at  the  time  of  Professor 
Story's  death,  actually  possessed,  independent  of  the  somewhat 
scanty  donations  of  Mr.  Royall  and  Mr.  Dane,  funds  and  other 
property,  including  a  large  library  and  a  commodious  edifice, 


STORY— GREEN  LEAF  PERIOD.  45 

amounting  to  upwards  of  fifty-seven  thousand  dollars,  all  of 
which  had  been  earned  during  Professor  Story's  term  of  service. 
As  he  declined,  during  all  this  time,  to  receive  a  larger  annual 
salary  than  $1,000,  and  as  his  high  character  and  the  attraction 
of  his  name  doubtless  contributed  to  swell  the  income  of  the 
School,  it  will  be  evident  that  a  considerable  portion  of  this 
large  sum  may  justly  be  regarded  as  the  fruit  of  his  bountiful 
labors  contributed  to  the  University. 

The  committee,  while  calling  attention  to  the  extent  of  the 
pecuniary  benefaction  which  the  Law  School  has  received  from 
Professor  Story,  have  felt  it  their  duty  to  urge  upon  the  Gov- 
ernment of  the  University  the  propriety  of  recognizing  this 
service  in  some  suitable  form.  The  name  of  Royall,  attached  to 
one  of  the  professorships,  keeps  alive  the  memory  of  his  early 
beneficence.  The  name  of  Dane,  attached  to  the  professorship 
on  which  Story  taught,  and  sometimes  to  the  edifice  containing 
the  library  and  lecture-rooms,  and  also  to  the  Law  School  itself, 
attests,  with  triple  academic  voice,  a  well-rewarded  donation. 
But  the  contributions  of  Royall  and  Dane  combined — important 
as  they  have  been,  and  justly  worthy  of  honorable  mention — do 
not  equal  what  has  been  contributed  by  Story.  At  the  present 
moment.  Story  must  be  regarded  as  the  largest  pecuniary  bene- 
factor of  the  Law  School,  and  one  of  the  largest  pecuniary  bene- 
factors of  the  University.  In  this  respect  he  stands  before 
Hollis,  Alford,  Boylston,  Hersey,  Bowdoin,  Erving,  Eliot,  Smith. 
M'Lean,  Perkins,  and  Fisher.  His  contributions  have  this  addi- 
tional peculiarity,  that  they  were  munificently  afforded, — from 
his  daily  earnings, — not  after  death,  but  during  his  own  life;  so 
that  he  became,  as  it  were,  the  executor  of  his  own  will.  In 
justice  to  the  dead,  as  an  example  to  the  living,  and  in  conformity 
with  established  usage,  the  University  should  enroll  his  name 
among  its  founders,  and,  in  some  fit  manner,  inscribe  it  upon 
the  School  which  he  has  helped  to  rear. 

Three  different  courses  have  occurred  to  the  committee.  The 
edifice  containing  the  library  and  lecture-rooms  may  be  called 
after  him,  Story  Hall.  Or  the  branch  of  the  University  devoted 
to  law  may  be  called  the  Story  Laiu  School;  as  the  other  branch 
of  the  University  devoted  to  science  is  called,  in  gratitude  to  a 
distinguished  benefactor,  Laurence  Scientific  School.  Or,  still 
further,  a  new  and  permanent  professorship  in  the  Law  School 
may  be  created,  bearing  his  name. 

If  the  latter  suggestion  should  find  acceptance,  the  committee 
would  recommend  that  the  professorship  be  of  Commercial  Laiv 
and  the  Law  of  Nations.  It  is  well  known  that  it  was  the  earnest 
desire  of  Professor  Story,  often  expressed,  in  view  of  the  in- 
creasing means  of  the  Law  School,  and  of  the  necessity  of  meet- 
ing the  increasing  demands  for  education  in  the  law,  that  pro- 
fessorships of  both  these  branches  should  be  established.  He 
regarded  that  of  commercial  law  as  most  needed.  His  own  pre- 


46  HARVARD  LAW  SCHOOL. 

eminence  in  this  department  is  shown  in  his  works,  and  especially 
in  his  numerous  judicial  opinions.  And  only  a  few  days  before 
his  death,  in  conversation  with  one  of  this  committee,  hearing 
that  it  had  been  proposed  by  some  of  the  merchants  of  Boston, 
on  his  resignation  of  the  seat  which  he  had  held  on  the  Bench" 
for  thirty-four  years,  to  cause  his  statute  in  marble  to  be  erected, 
he  said,  "If  the  merchants  of  Boston  wish  to  do  me  honor  in  any 
way  on  my  leaving  the  Bench,  let  it  not  be  by  a  statue,  but  by 
founding  in  the  Law  School  a  professorship  of  commercial  law." 
With  these  generous  words  he  embraced  in  his  vows  at  once  his 
favorite  law,  and  his  favorite  University. 

The  subject  of  commercial  law  is  of  great  and  growing  prac- 
tical importance.  Every  new  tie  of  commerce,  in  the  multiply- 
ing relations  of  mankind,  gives  new  occasion  for  its  application. 
Besides  the  general  principles  of  the  Law  of  Contracts,  it  com- 
prehends the  Law  of  Bailments,  Agency,  Partnership,  Bills  of 
Exchange,  and  Promissory  Notes,  Shipping  and  Insurance; — 
branches  of  inexpressible  interest  to  the  lawyer,  the  merchant, 
and,  indeed,  to  every  citizen.  The  main  features  of  this  law 
are  common  to  all  commercial  nations :  they  are  recognized  with 
substantial  uniformity,  whether  at  Boston,  London,  or  Calcutta; 
at  Hamburg,  Marseilles,  or  Leghorn.  In  this  respect  they  may 
be  regarded  as  a  part  of  the  private  law  of  nations.  They  would 
be  associated  naturally  with  the  Public  Law  of  Nations ;  embrac- 
ing, of  course,  the  Law  of  Admiralty,  and  that  other  branch 
which,  it  is  hoped,  will  remain  for  ever  a  dead  letter, — the  Law 
of  Prize. 

The  committee  believe  that  all  who  hear  this  statement  will 
agree  that  something  ought  to  be  done  to  commemorate  the 
obligation  of  the  University  to  one  of  its  most  eminent  pro- 
fessors and  largest  pecuniary  benefactors.  They  have  ventured 
to  make  suggestions  with  regard  to  the  manner  in  which  this 
may  be  accomplished,  not  with  any  pertinacious  confidence  in 
their  own  views,  but  simply  as  a  mode  of  opening  the  subject, 
and  bringing  it  to  your  best  attention.  In  dwelling  on  the  pro- 
priety of  creating  a  new  and  permanent  professorship,  they  do 
not  wish  to  be  understood  as  expressing  a  preference  for  this 
form  of  acknowledgment.  It  may  well  be  a  question,  whether  the 
services  of  Professor  Story, — important  in  every  respect, — 
shedding  upon  the  Law  School  a  lasting  fame,  and  securing  to  it 
pecuniary  competence,  an  extensive  library,  and  a  commodious 
hall, — can  be  commemorated  with  more  appropriate  academic 
honors,  than  by  giving  his  name  to  that  department  of  the  Uni- 
versity of  which  he  has  been  the  truest  founder.  The  world,  in 
advance  of  any  formal  action  of  the  University,  has  already 
placed  the  Law  School  in  the  illumination  of  his  name.  It  is  by 
the  name  of  Story  that  this  seat  of  legal  education  has  become 
known  wherever  jurisprudence  is  cultivated  as  a  science.  By 
his  name  it  has  been  crowned  abroad. 


Joseph  Story 


CHAPTER  XXVI. 
REMINISCENCES  OF  STORY. 

The  value  of  a  great  personality  as  an  educative  force  has 
never  been  better  illustrated  than  in  the  history  of  Harvard  Uni- 
versity during  the  administration  of  President  Quincy  and  his 
brilliant  corps  of  Professors.  As  George  F.  Hoar,  a  graduate 
of  the  College  in  1846  and  of  the  Law  School  in  1849,  said: 

A  youth  who  contemplated  with  a  near  and  intimate  knowl- 
edge the  large  manhood  of  Josiah  Quincy;  who  listened  to  the 
eloquence  of  James  Walker  or  heard  his  exposition  of  the  prin- 
cipal systems  of  ethics  or  metaphysics;  or  who  sat  at  the  feet 
of  Judge  Story  as  he  poured  forth  the  lessons  of  jurisprudence 
in  a  clear  and  inexhaustible  stream,  caught  an  inspiration  which 
transfigured  the  very  soul  of  the  pupil. 

Certain  it  is  that  the  influence  which  the  Law  School  had  upon 
the  students  of  those  times  was  largely  due  to  the  personal 
characteristics  of  Story  and  Greenleaf ;  and  to  this  influence  the 
pupils  have  borne  ample  testimony. 

Of  Greenleaf 's  personality,  an  account  has  already  been  given 
in  the  extract  quoted  from  Professor  Theophilus  Parsons'  eulogy. 

Some  of  his  pupils  now  alive  have  described  him  as  follows, — 
"a  high  type  of  old  time  New  England  lawyer — learned,  logical, 
lucid." — a  man  of  concise  style  and  clear  ideas" — "revered  and 
honored  by  the  students". 

While  somewhat  reserved  in  his  manner,  his  affection  for  his 
pupils  was  warm  and  was  fully  recognized  by  them;  his  whole 
time  and  legal  knowledge  were  placed  without  stint  at  their  dis- 
posal ;  and  he  had  a  quiet  vein  of  humor,  especially  in  his  letters, 
which  was  one  of  the  most  attractive  sides  of  his  nature. (i) 

Of  the  character  of  Judge  Story  as  a  man  and  as  a  teacher 
the  best  description  is  had  in  the  words  of  his  own  pupils.  Thus 
Richard  Henry  Dana,  Jr.,  a  student  in  1837-40,  wrote  to  W.  W. 
Story : 

(i)  Letters  to  the  author  in  1907  from  J.  B.  Walker  of  Concord,  N. 
H.  (L.  S.  1845-46)  A.  B.  Gale,  of  Jackson,  Miss.  (L.  S.  1847-49),  Charles 
E.  Hooker  of  Jackson,  Miss.  (1844-46). 


48  HARVARD  LAW  SCHOOL. 

His  pupils  in  all  parts  of  America,  whatever  may  be  their 
occupation  or  residence,  or  whatever  the  lapse  of  time,  will  rise 
up,  as  one  man,  and  call  him  blessed.  He  combined,  in  a  remark- 
able manner,  as  has  been  said  by  everybody,  the  two  great  facul- 
ties of  creating  enthusiasm  in  study,  and  establishing  relations  of 
confidence  and  affection  with  his  pupils.  We  felt  that  he  was 
our  father  in  the  law,  our  elder  brother,  the  patriarch  of  a  com- 
mon family.  We  felt  as  if  we  were  a  privileged  class,  privileged 
to  pursue  the  study  of  a  great  science,  to  practise  in  time  in  the 
cause  and  courts  of  justice  before  men,  where  success  must  fol- 
low labor  and  merit, — where  we  had  only  to  deserve,  and  we 
could  put  forth  the  hand  and  pluck  the  fruit.  The  pettifogging, 
the  chicanery  of  the  law,  were  scandals,  or  delusions,  or  accidents 
of  other  times.  The  meanest  spirit  was  elevated  for  the  time, 
and  the  most  sluggish  and  indifferent  caught  something  of  the 
fervor  of  the  atmosphere  which  surrounded  him.  If  he  did  not, 
it  was  a  case  in  which  inoculation  would  not  take. 

You  remember  the  importance  that  we  attached  to  the  argu- 
ment of  moot-court  cases.  Yet,  no  ambitious  young  man,  on 
his  first  appearance,  showed  more  interest  in  the  causes  than 
your  father,  who,  as  you  know,  had  usually  heard  them  argued 
before  at  Washington,  or  in  his  circuits,  by  the  most  eminent 
counsel.  Saturday,  you  remember,  is  a  dies  non  juridicus  at 
Cambridge.  To  compel  a  recitation  on  Saturday  afternoon, 
among  the  undergraduates,  would  have  caused  a  rebellion.  If 
a  moot-court  had  been  forced  upon  the  Law  School,  no  one 
would  have  attended.  At  the  close  of  a  term,  there  was  one  more 
case  than  there  was  an  afternoon  to  hear  it  in,  unless  we  took 
Saturday.  The  counsel  were  anxious  to  argue  it,  but  unwilling 
to  resort  to  that  extreme  measure.  Your  father  said, — "Gen- 
tlemen, the  only  time  we  can  hear  this  case  is  Saturday  afternoon. 
This  is  dies  non,  and  no  one  is  obliged  or  expected  to  attend.  I 
am  to  hold  court  in  Boston  until  two  o'clock.  I  will  ride  directly 
out,  take  a  hasty  dinner,  and  be  here  by  half-past  three  o'clock 
and  hear  the  case,  if  you  are  willing."  He  looked  round  the 
school  for  a  reply.  We  felt  ashamed,  in  our  own  business,  where 
we  were  alone  interested,  to  be  outdone  in  zeal  and  labor  by 
this  aged  and  distinguished  man,  to  whom  the  case  was  but 
child's  play,  a  tale  twice  told,  and  who  was  himself  pressed  down 
by  almost  incredible  labors.  The  proposal  was  unanimously 
accepted.  Your  father  was  on  the  spot,  at  the  hour,  the  school 
was  never  more  full,  and  he  sat  until  late  in  the  evening,  hardly 
a  man  leaving  the  room. 

Do  you  remember  the  scene  that  was  always  enacted  on  his 
return  from  his  winter  session  at  Washington?  The  school  was 
the  first  place  he  visited  after  his  own  fireside.  His  return, 
always  looked  for  and  known,  filled  the  Library.  His  reception 
was  that  of  a  returned  father.  He  shook  all  by  the  hand,  even 
the  most  obscure  and  indifferent;  and  an  hour  or  two  was  spent 


REMINISCENCES.  49 

in  the  most  exciting,  instructive,  and  entertaining  descriptions 
and  anecdotes  of  the  events  of  the  term.  Inquiries  were  put  by 
students  from  different  States,  as  to  leading  counsel  or  interesting 
causes  from  their  section  of  the  country,  and  he  told  us,  as  one 
would  have  described  to  a  company  of  squires  and  pages  a 
tournament  of  monarchs  and  nobles  on  fields  of  cloth  of  gold ; — 
how  Webster  spoke  in  this  case,  Legare,  or  Clay,  or  Crittenden, 
General  Jones,  Choate,  or  Spencer,  in  that,  with  anecdotes  of  the 
cases  and  points,  and  all  "the  currents  of  the  heady  fight." 

Rutherford  B.  Hayes  (a  student  in  1843-45),  thus  describes, 
in  his  diary,  Story's  first  lecture  of  the  term(i)  : 

He  spoke  at  some  length  of  the  advantage  and  necessity  of 
possessing  complete  control  of  the  temper,  illustrating  his  views 
with  anecdotes  of  his  own  experience  and  observation.  His  man- 
ner is  very  pleasant,  betraying  great  good-humor  and  fondness 
for  jesting.  His  most  important  directions  were:  Keep  a  con- 
stant guard  upon  temper  and  tongue.  .  .  .  When  in  the 
library,  employ  yourself  in  reading  the  title-pages  and  table  of 
contents  of  the  books  of  reports  which  it  contains,  and  endeavor 
to  get  some  notion  of  their  relative  value.  Read  Blackstone  again 
and  again — incomparable  for  the  beauty  and  chasteness  of  its 
style,  the  amount  and  profundity  of  its  learning. 

And  at  the  end  of  the  first  week,  Hayes  wrote : 

We  have  no  formal  lectures.  Professors  Story  and  Greenleaf 
illustrate  and  explain  as  they  proceed.  Mr.  G.  is  very  searching 
and  logical  in  examination.  It  is  impossible  for  one  who  has  not 
studied  the  text  to  escape  exposing  his  ignorance ;  he  keeps  the 
subject  constantly  in  view,  never  stepping  out  of  his  way  for 
the  purpose  of  introducing  his  own  experience.  Judge  Story, 
on  the  other  hand,  is  very  general  in  his  questions,  so  that  persons 
well  skilled  in  nods  affirmative  and  negative  shakings  of  the  head, 
need  never  more  than  glance  at  the  text  to  be  able  to  answer  his 
interrogatories.  He  is  very  fond  of  digressions  to  introduce 
amusing  anecdotes,  high-wrought  eulogies  of  the  sages  of  law, 
and  fragments  of  his  own  experience.  He  is  generally  very  inter- 
esting, and  often  quite  eloquent.  His  manner  of  speaking  is 
almost  precisely  like  that  of  Corwin.  In  short,  as  a  lecturer  he 
is  a  very  different  man  from  what  you  would  expect  of  an  old 
and  eminent  judge ;  not  but  that  he  is  great,  but  he  is  so  inter- 
esting and  fond  of  good  stories.  His  amount  of  knowledge  is 
prodigious.  Talk  of  "many  irons  in  the  fire" !  Why,  he  keeps 
up  with  the  news  of  the  day  of  all  sorts,  from  political  to  Weller- 
isms,  and  new  works  of  all  sorts  he  reads  at  least  enough  to  form 

(i)     Life  of  Rutherford  B.  Hayes,  by  William  D:  Howells  (1876). 
4 


50  HARVARD  LAW  SCHOOL. 

an  opinion  of,  and  all  the  while  enjoys  himself  with  a  flow  of 
spirits  equal  to  a  school-boy  in  the  holidays.  So  ho !  the  measures 
of  literature  are  not  so  small  after  all. 

Of  the  closing  lecture  of  the  term,  Hayes  wrote  that  the 
students  were  urged  to  lay  a  broad  and  deep  foundation  of  legal 
reading;  to  remember  that  the  law  was  a  jealous  mistress,  and 
to  have  nothing  to  do  with  the  charmer  Politics  before  forty;  to 
use  their  young  hopes,  desires,  confidence,  ambition,  and  energy, 
only  for  useful  and  noble  ends,  and  were  assured  that  their 
master  had  a  pride  and  interest  beyond  their  conception  in  their 
future  success.  And  at  the  close  of  his  entry,  Hayes  exclaimed : 
"Pshaw!  How  my  haste  (indecent!)  spoils  the  Old  Man  Elo- 
quent !" 

George  W.  Huston  who  was  in  the  School  in  1841-43, 
wrote(i)  : 

Most  of  the  law  students  boarded  and  roomed  at  private 
houses  with  families.  They  were  furnished  with  text-books  by 
the  college,  and  studied  at  their  rooms  when  not  in  class.  We 
had  daily  lectures  on  Law  from  the  two  distinguished  lawyers, 
and  there  were  daily  examinations  of  the  students  by  questions 
put  by  these  eminent  professors.  Twice  a  week  we  had  moot 
court,  presided  over  by  one  of  the  professors,  at  which  two 
students  were  assigned  on  each  side  to  discuss  law  questions 
given  out  by  the  professors.  This  discussion  was  sometimes 
marked  by  very  considerable  ability,  as  most  of  the  law  students 
were  grown  young  men,  many  of  them  being  graduates  from  the 
different  leading  colleges  then  to  be  found  in  America.  As  a 
rule,  these  young  men  had  come  to  Harvard  as  the  fountain 
head  of  legal  learning,  earnestly  meaning  to  learn  all  they  could, 
and  but  few  were  idlers.  I  recall  but  a  single  exception,  and 
this  was  the  son  of  a  millionaire — there  being  only  one  in  Amer- 
ica at  that  time.  This  young  gentleman,  so  distinguished,  was 
a  pupil — but  not  a  student — at  the  Harvard  Law  School.  He 
attended  the  lectures  as  the  rest  of  us  did,  but  cut  a  poor  figure 
in  class,  notwithstanding  he  was  always  driven  out  from  his 
magnificent  rooms  at  the  finest  hotel  in  Boston,  sitting  back  in 
his  gorgeous  carriage,  attended  by  several  liveried  servants  and 
accompanied  by  many  dogs.  It  need  hardly  be  said  he  was  not 
popular.  Boy-nature  is  much  the  same  among  the  Harvard  stu- 
dents of  three  generations  ago  that  it  is  among  school-boys 
to-day.  There  was  only  the  difference  that  such  individious 

distinctions  were  rarer  then  than  they  are  now,  and  the  feeling 

___ ______ _ _  * 

(i)     See  Memories  of  Eighty  Years,  by  George  W.  Huston  (1904). 


REMINISCENCES.  51 

of  democracy  was  freshly  strong  and  exceptionally  intense, 
through  our  recent  war  with  England.  So  it  was  that  there  was 
much  general  enjoyment  of  an  incident  which  seemed  to  the 
indignant  students  to  put  "Mr.  Millionaire"  in  his  proper  place. 
He  knew  nothing  of  law,  but  being  somehow  driven  to  look  into 
a  digest  of  legal  decisions,  he  happened  upon  a  reference  to  a 
point  he  wished  to  make.  This  reference  was  contained  in  the 
9th  volume  of  English  Modern  Reports,  and  the  digest  in  refer- 
ring to  it  made  use  of  the  familiar  abbreviation — "gth  Mod." 
And  it  was  this  that  tripped  up  "Mr.  Millionaire"  and  made 
his  fellow  students  howl  with  delight  when  he  said  pompously: 

"Your  Honor  will  find  it  in  the  9th  Moderator." 

"Ninth  Modern,  sir — not  Moderator." 

Saying  this  Professor  Greenleaf  tried  to  frown  down  the 
shouting  of  the  class,  but  could  not  help  smiling  himself.  And 
from  that  hour  to  the  time  he  left  Harvard  Mr.  Millionaire 
was  known  to  his  fellow-students  as  "Mr.  Moderator." 

Frequently  important  cases  were  argued  out  in  our  lecture 
room  by  Mr.  Franklin  Dexter,  Mr.  Sumner,  and  other  great 
lawyers  of  that  day,  before  Judge  Story,  sitting  as  a  United 
States  Circuit  Court.  Judge  Story  was  utterly  without  preten- 
tions  of  any  kind  and  one  of  the  most  lovable  men  I  have  ever 
known.  He  was  always  in  a  good  humor,  and  singularly  simple- 
hearted,  being  almost  childlike  in  his  manner,  and  had  a  smile 
for  everyone  and  a  pleasant  word  ever  ready  for  utterance.  His 
long,  well-formed  head  was  perfectly  bald,  with  only  one  little 
bunch  of  hair  in  front,  and  he  had  a  singular  habit  of  combing 
this  patch  of  hair  with  a  small  pocket  comb,  even  in  lecture  hour. 
It  was  easy  to  draw  him  away  from  the  subject  of  his  lecture 
and  to  lead  him  off  into  anecdotes  about  various  great  men, 
stories  about  General  Washington,  Alexander  Hamilton,  Chief 
Justice  Marshall  and  others.  Some  of  the  students — all  of  whom 
were  eager  to  hear  him — would  frequently  thus  draw  him  out  by 
a  pretendedly  casual  question.  Judge  Story,  also  full  of  fun  and 
fond  of  jokes,  was  once  called  upon  to  decide  an  amusing  matter, 
which  occasioned  some  temporary  and  half -serious  perplexity  at 
Harvard.  There  was  a  wealthy  old  man,  a  retired  tanner,  then 
living  in  Cambridge  Port,  who  was  very  illiterate,  but  who 
must  have  been  a  lover  of  education,  since  he  had  purchased, 
through  agents  in  Europe,  a  library  of  ten  thousand  volumes, 
which  were  said  to  be  valuable  in  their  contents,  and  which 
were  all  gorgeously  bound  in  gold  leaf.  He  was,  at  all  events, 
ambitious  for  literary  distinction  and  determined  to  achieve  it  if 
he  could.  He  accordingly  offered  to  make  the  whole  of  this 
gorgeous  library  a  present  to  Harvard  College,  upon  the  single, 
but  explicit,  condition  that  the  College  faculty  would  confer  upon 
him  the  degree  of  LL.D.  The  governors  of  the  College  would 
have  been  pleased  to  add  the  old  man's  books  to  the 
library,  for,  as  I  have  said,  the  books  were  understood  to  be 


52  HARVARD  LAW  SCHOOL. 

valuable  inside,  as  well  as  outside.  But  that  condition!  It  is 
scarcely  probable  that  it  was  ever  seriously  entertained  or  con- 
sidered but  there  naturally  was  much  discussion  of  the  proposi- 
tion. At  any  rate,  the  faculty  held  several  meetings — to  laugh 
over  the  matter,  most  likely.  At  the  last  meeting  Judge  Story 
arose  and  gravely  inquired: 

"Should  we  finally  accept  this  proposition  and  concede  the 
degree — in  that  case — what  would  the  letters  LL.D.  stand  for?" 

There  being  no  answer  to  the  question,  the  judge  answered  it 
himself: 

"If  bestowed  upon  this  gentleman,  they  could  not  possibly 
stand  for  anything  but  Learned  Leather  Dresser."  And  that 
settled  the  question  of  the  library  bound  in  gold  leaf. 

.  .  .  I  was  a  natural  lover  of  good  books,  and  my  life  at 
Harvard  gave  me  free  access  to  the  greatest  library  then  in 
America.  I  was  allowed,  under  proper  restriction,  to  take  books 
to  my  room,  and  there,  pouring  over  the  great  sources  of  knowl- 
edge, I  formed  the  habit  of  useful  reading  which  has  strengthened 
as  the  years  have  passed.  In  making  frequent  visits  to  the 
library  I  used  often  to  see  Mr.  Longfellow,  who  was  then  the 
Professor  of  Literature,  and  whom  I  rarely  saw  elsewhere,  as 
my  studies  in  the  Law  School  did  not  bring  me  in  contact  with 
him.  And  I  always  looked  at  him  with  keen  interest;  not 
because  he  was  a  great  poet — for  his  fame  came  later — but 
because  he  was  such  a  great  dandy,  such  an  exquisite  in  his 
dress  and  manner. 

Another  whom  I  often  saw  in  the  library  was  Professor  Web- 
ster, who  lectured  on  Chemistry. 

As  the  living  roll  of  men  who  studied  under  Story  and  Green- 
leaf  rapidly  diminishes,  the  following  reminiscences  from  those 
who  still  survive  deserve  a  special  and  valued  place  in  this  his- 
tory, (i) 

William  R.  Gorman  of  Paschal,  Georgia,  a  student  in  1844-45,. 
writes : 

I  can  never  forget  Judge  Story's  manner  when  he  informed 
us  that  he  would  have  to  leave  us  for  a  while  to  go  to  the  Supreme 
Court  in  Washington.  In  making  his  announcement  he  was 
much  affected.  He  spoke  in  terms  of  endearment  of  the  Law 
School  and  expressed  his  hope  that  he  would  not  be  away  long. 
When  his  work  was  over,  he  hurried  back  to  Cambridge  to  be 
again  with  his  students ;  he  never  failed  to  receive  a  warm  wel- 
come from  them.  He  was  sure  to  be  received  with  cheers,  and 


(i)  The  author  in  preparing  this  history  addressed  a  personal  letter  to 
every  living  graduate  of  the  classes  prior  to  1855.  The  letters  quoted  are 
a  few  of  the  many  replies  received  by  him  in  1907  and  1908. 


REMINISCENCES.  53 

this  was  especially  so  if  any  case  had  been  decided  which  had 
agitated  the  public  mind.  He  was  always  glad  to  get  home 
again,  and  no  matter  whether  he  met  them  on  the  street  or  spoke 
to  them  from  his  platform,  his  words  were  ever  kind  and  gra- 
cious, and  he  said  how  glad  he  was  to  see  you ;  and  the  expres- 
sion on  his  face  gave  ample  proof  that  what  he  said  was  true. 

Mr.  Greenleaf,  our  instructor  in  common  law,  was  in  some 
respects  different  in  his  manner  of  bearing  towards  us,  somewhat 
distant  and  reserved.  He  was  a  man  of  but  few  words,  and 
thoroughly  versed  in  law.  When  any  of  us  asked  him  to  explain 
a  point  we  did  not  thoroughly  understand,  no  man  of  his  day  or 
to-day  could  make  it  clearer  than  he  could. 

Moot  courts  were  held  at  stated  times,  Judge  Story  presiding 
with  as  much  grace  and  dignity  as  he  did  when  on  the  bench 
at  Washington.  Occasionally  some  of  the  more  advanced  stu- 
dents presided.  We  had  quite  a  number  of  distinguished  visitors, 
John  Quincy  Adams  among  them. 

Daniel  Webster  was  occasionally  with  us  at  the  time,  and 
whenever  he  entered  the  Law  School  building  always  received 
an  ovation  from  the  students. 

I  stopped  for  a  while  with  Mrs.  Sawyer,  corner  of  Pleasant 
Street,  Cambridgeport.  Later  Mr.  Anson  Burlingame  from 
Michigan  came,  and  proved  a  valuable  addition  to  the  small 
coterie  of  friends  I  already  had  there.  He  was  a  genial  fellow, 
and  soon  became  very  popular  with  the  students  and  citizens  as 
well. 

Later  I  changed  my  boarding  house  and  went  to  Mrs.  Coch- 
ran's  to  be  near  the  College.  Among  the  students  and  people 
generally,  I  had  a  most  pleasant  and  agreeable  time.  Socially 
I  never  had  a  better. 

I  do  not  consider  that  I  have  done  my  duty  to  myself,  with- 
out some  reference  to  the  Professors  in  the  University.  They 
were  courteous  and  very  polite,  especially  to  those  who  had  the 
privilege  of  visiting  them  and  their  families. 

Professor  Longfellow  held  the  chair  of  Belles  Lettres  in  the 
University  and  was  very  popular  with  the  law  students.  I  had 
the  pleasure  of  knowing  him  and  also  two  of  his  daughters. 

Professor  Jared  Sparks,  author  of  the  Life  of  George  Wash- 
ington, was  quite  an  old  man  when  I  knew  him,  but  most  agree- 
able and  interesting  to  those  of  us  who  called  on  him.  He  never 
tired  of  talking  to  those  who  appreciated  him ;  I  never  can  for- 
get how  his  eyes  sparkled  when  he  talked  of  Washington. 

Edward  A.  Simon  of  St.  Martinville,  Louisiana,  who  was  in 
the  School  1844-47,  describes  Greenleaf  as  not  communicative 
socially  to  his  students,  rather  dry,  but  extremely  kind.  Of 
Story,  he  writes  that  he  was  "worshipped  by  us  all",  and  that 


54  HARVARD  LAW  SCHOOL. 

his  lectures  were  "magnificently  taught,  interesting  and  eloquent, 
and  replete  with  anecdote  and  reminiscence." 

Simon  also  refers  to  the  popularity  of  Longfellow  (whom  he 
knew  personally)  with  the  law  students,  and  states  the  interest- 
ing fact  that  much  of  the  portion  of  Evangeline  relating  to 
Louisiana  was  founded  on  a  description  given  by  Simon  of  his 
own  home  in  that  State. 

Charles  G.  Hooker  of  Jackson,  Mississippi,  who  was  in  the 
School  1844-46  writes : 

Judge  Story  was  much  beloved  by  all  the  students,  by  none 
more  so  than  the  Southern  students.  I  was  in  the  School  when 
he  died  and  no  more  sincere  mourners  followed  him  to  the  grave 
than  the  body  of  students  from  the  South. 

He  was  plain,  simple,  unostentatious  and  without  a  particle  of 
the  distance  of  the  Professor.  He  would  often  meet  me  on  the 
street  and  taking  me  by  the  arm,  say  to  me  "Let  me  walk  a  square 
with  you,  my  young  brother  in  the  profession". 

He  had  the  habit  of  illustrating  the  subject  he  was  lecturing 
on  by  an  anecdote,  and  sometimes,  when  beginning,  would  pause 
and  ask  "Have  I  told  this  before,  this  session?"  Every  man 
in  the  class  with  a  pardonable  lapse  from  truth  would  answer 
"No,  sir.  No,  sir". 

On  one  occasion  Judge  Story  while  lecturing  to  us  on  Agency 
(on  which  his  own  work  was  the  text  book),  said,  "I  will  not 
lecture  to  you  next  Thursday,  but  will  invite  the  class  to  go  over 
to  Boston  and  hear  some  great  lawyers  argue  before  me  in  the 
Circuit  Court."  The  class  accordingly  strolled  over  across  the 
Long  Bridge  on  the  appointed  day.  Mr.  Rufus  Choate  was 
one  of  the  counsel,  and  his  fondness  for  long  sentences  and 
magniloquent  words  was  illustrated  in  this  case  by  the  fact  that 
though  it  involved  a  pail  of  butter  and  cheese,  he  never  referred 
to  these  articles  by  name,  but  as  "products  of  the  country". 

In  his  argument,  while  Choate  was  citing  certain  varying 
authorities  which  laid  down  a  very  indefinite  and  commingled 
rule,  Judge  Story  interrupted  him  pleasantly  by  saying,  "Mr. 
Choate,  these  cases  are  like  the  colors  of  the  rainbow  which 
insensibly  fade  into  each  other." 

Choate  pacing  up  and  down  before  the  jury,  as  was  his  habit, 
and  passing  his  long  fingers  through  his  long  curly  hair  replied, 
"Yes,  your  Honor,  or  may  it  not  rather  be  said  to  be  like  that 
peculiar  period  of  time  called  twilight  when  no  man  knows 
whether  it  be  day  or  night." 

Daniel  Saunders  of  Lawrence,  Mass.,  a  student  in  1844,  writes : 
The  two  men  (Story  and  Greenleaf)  were  very  unlike  in  many 


REMINISCENCES.  55 

respects  personally  and  as  instructors — Professor  Greenleaf,  in 
the  lecture  room  was  more  concise  in  statement,  more  analytical 
in  the  development  of  the  law  and  its  history — more  exacting  in 
the  examination  of  students  in  the  class  room.  He  was  apprecia- 
tive of  merit,  but  not  tolerant  of  failure  on  the  part  of  students 
when  this  was  evidently  the  want  of  application  in  preparation — 
courteous  but  dignified  in  his  personal  relations  with  the  students. 

Judge  Story  was  not  only  courteous  but  very  cordial — never 
passing  a  student  outside  the  class  room  without  a  pleasant  greet- 
ing. And  often  in  the  class  room  he  would  entertain  us  with  a 
most  sprightly  and  interesting  discourse  which  was  more  of  a 
conversation  and  lecture,  in  which  we  would  join.  Sometimes 
he  would  be  reminded  of  a  case  tried  before  him,  and  then  we 
would  have  an  interesting  review  of  the  case  and  the  eminent 
lawyers  employed  in  it.  I  remember  a  very  interesting  talk  which 
he  gave  us  upon  a  case  in  which  the  famous  lawyer,  William 
Pinkney,  was  employed,  and  a  very  interesting  short  biography 
of  this  lawyer.  Judge  Story  was  a  most  voluble  talker.  He 
concluded  his  remarks  about  Pinkney  by  saying,  "As  great  a  man 
as  he  was,  he  had  one  grievous  fault — a  fault  I  advise  young 
men  to  guard  against — he  was  an  interminable  talker."  As  a 
smile  flitted  across  our  faces,  the  Judge  broke  into  a  laugh  and 
added,  "It  is  a  great  fault  no  matter  who  indulges  in  it".  The 
Judge's  lectures  were  most  interesting,  but  perhaps  not  so  in- 
structive as  his  colloquies.  Perhaps  this  difference  between  the 
two  men  may  be  illustrated  by  two  similar  incidents  which  hap- 
pened in  the  lecture  room.  It  was  reported  to  me  that  a  fire 
alarm  was  sounded,  during  a  class  examination  by  Professor 
Greenleaf ;  and  when  the  class  began  to  show  more  interest  in  the 
fire  than  in  class  work,  the  Professor  quietly  said,  "Young  men, 
the  fire  department  will  attend  to  the  fire  and  we  will  attend  to 
the  subject  before  us."  .  .  .  After  a  similar  alarm  had  been 
sounded  during  a  class  recitation  under  Judge  Story,  at  which  I 
was  present,  as  the  engines  went  clanging  by,  we  began  to  peer 
out  of  the  windows,  and  our  interest  was  so  plainly  shown  in 
the  matter  of  the  fire  rather  than  in  our  class  work  the  Judge 
took  a  look  out  of  the  window  himself,  just  as  a  large  volume  of 
smoke  burst  up  from  a  near-by  building,  and  said,  "Run,  boys, 
run !  Inter  igncs,  silent  leges."  We  ran,  and  the  Judge  followed. 

At  a  Moot  Court  over  which  the  Judge  presided  I  was  assigned 
to  argue  one  side  of  the  case.  As  it  was  my  first  Moot  Court 
case,  I  was  very  anxious  and  read  up  all  the  law  I  could  find 
bearing  upon  it.  Amongst  the  cases  I  found  was  a  U.  S.  Circuit 
Court  one  decided  by  the  Judge  himself,  very  strongly  sustaining 
my  side.  In  my  argument,  I  reserved  this  case  as  the  last  of  my 
authorities,  and  then  said,  "In  conclusion,  I  have  a  case  which  I 
am  sure  will  be  recognized  by  every  court  as  of  supreme  au- 
thority, as  it  is  the  decision  of  the  present  most  learned  and  emi- 
nent court".  As  I  cited  it,  the  Judge  smiled  at  my  attempted 


56  HARVARD  LAW  SCHOOL. 

compliment,  and  then  said,  "I  thought  that  was  good  law  when  I 
made  that  decision,  but  the  United  States  Supreme  Court  thought 
otherwise."  And  then,  with  a  twinkle  in  his  eyes,  he  said,  "I 
don't  know  as  I  have  altered  my  mind,  as  to  its  being  good  law, 
yet."(i) 

Edward  H.  Daveis  of  Portland,  Me.,  who  was  at  the  School, 
1839-41,  writes: 

I  was  very  fortunate  in  having  for  my  instructors  three 
eminent  lawyers  of  the  day — Charles  Sumner,  Simon  Greenleaf 
and  Judge  Story.  They  were  men  of  striking  personality — who 
left  a  deep  impression  on  my  mind. 

I  well  remember  Charles  Sumner,  clad  according  to  the  fash- 
ion of  the  day,  in  small  clothes,  which  well  became  his  tall, 
straight,  large  limbed  figure.  I  recall  how  genially  he  always 
greeted  his  class,  and  in  how  interesting  a  manner  he  presented 
to  us  the  subject  under  discussion.  Very  popular  with  all  the 
students,  he  was  especially  kind  to  me  on  account  of  his  warm 
friendship  for  my  father,  Charles  Stewart  Daveis. 

I  also  remember  clearly  Simon  Greenleaf,  an  able  and  very 
accurate  instructor,  with,  as  the  students  said,  "a  wig-full  of 
learning".  I  recall  his  pleasant  laugh  and  the  sparkle  of  his 
bright  black  eyes,  as  he  told  in  his  inimitable  way  one  of  his 
amusing  stories,  or  drove  home  to  our  mind  some  law  point  with 
a  happy  hit. 

The  only  way  to  get  from  Cambridge  to  Boston  in  those 
days  was  by  an  old-fashioned,  red  omnibus — driven  by  one 
horse  and  largely  patronized  by  the  students,  at  50  cents  for 
the  round  trip.  Professor  Greenleaf,  in  a  course  of  lectures 
on  Evidence  was  explaining  one  day  to  us  the  difficulty  of  recov- 
ering damages  for  accidents.  By  way  of  illustration,  he  said  that 
in  a  case  where  a  person  in  crossing  a  street  was  run  down  by  a 
passing  carriage,  it  was  always  difficult  to  secure  the  name  of  the 
driver — but  he  added,  "Should  such  an  accident  occur  in  Cam- 
bridge, there  would  be  no  difficulty  in  placing  the  blame  on  the 
right  man — for  everyone  knows  Mors  Communis — every  one 
knows  Mors  Communis  Omnibus". 

There  was  the  greatest  enthusiasm  among  the  students  for  Mr. 
Greenleaf  and  also  for  Judge  Story — Mr.  Greenleaf  was  con- 
sidered the  most  accurate,  and  the  Judge  the  most  brilliant, 
teacher. 


(i)  On  another  occasion,  as  related  by  Gen.  Alexander  R.  Lawton  (L. 
S.  1841-42),  Story  "pronounced  a  decision  in  the  Moot  Court,  but  warned 
the  expectant  bar  then  present  that  if  any  one  of  them  should  bring  a 
similar  case  before  him  the  next  day  in  the  United  States  Circuit  Court, 
he  would  be  constrained  by  a  recent  decision  of  the  United  States  Su- 
preme Court  to  decide  the  other  way." 

See  Address  in  Georgia  Bar  Association  Proceedings,  Vol.  I  (1884). 


REMINISCENCES.  57 

I  once  quoted  before  Judge  Story  in  the  Moot  Court,  as  the 
first  recorded  case  of  jettison, — that  of  Jonah — "It  will  be 
remembered  on  the  voyage  from  Joppa  to  Tarsish,  the  vessel  in 
which  Jonah  sailed  was  beset  by  a  storm,  and  the  captain  ordered 
him  to  be  thrown  overboard  to  save  the  ship.  Jonah's  life  was 
saved  by  a  fish,  said  to  be  a  whale ;  but  from  the  formation  of  his 
jaws  it  was  more  probably  a  shark,  known  to  sailors  as  a  sea- 
lawyer." 

The  little  sally  at  the  profession  made  quite  a  laugh  among  the 
students,  in  which  Judge  Story,  who  always  enjoyed  a  joke, 
joined  heartily. 

Among  the  students  that  I  knew  best  at  the  Law  School,  were 
William  Story,  son  of  the  judge,  whom  I  remember  as  a  hand- 
some young  man,  with  a  fine  figure  and  very  bright.  Richard 
H.  Dana,  a  very  keen  lawyer,  who  argued  well  and  whom  I 
always  enjoyed  having  as  an  opponent  in  the  moot  court.  Will- 
iam I.  Bowditch,  a  very  talented  fellow,  who  made  very  full 
and  interesting  reports  of  the  cases  in  the  Moot  Court. 

A  custom  of  Story  which  was  of  great  interest  as  well  as 
benefit  to  his  pupils,  was  to  hold  sessions  of  the  United  States 
Circuit  Court,  for  the  hearing  of  arguments,  in  his  Lecture 
Room  in  Dane  Hall.  It  is  thus  referred  to  by  a  student  of 
1844-45(1): 

The  next  occasion  when  I  saw  David  Dudley  Field  was  when 
I  was  a  student  in  the  Cambridge  Law  School  in  the  class  of 
which  Rutherford  B.  Hayes  and  George  Hoadly  were  fellow 
members.  Judge  Story  in  his  capacity  as  Federal  Circuit  Judge 
was  in  the  habit  of  hearing  chamber  arguments  in  one  of  the 
class  rooms.  And  on  one  of  these  occasion,  it  was  bruited 
among  the  students  (who  were  always  welcome  upon  their 
occurrence)  that  Boston's  famous  Rufus  Choate  was  to  be  argued 
against  by  two  New  York  lawyers.  These  were  soon  ascertained 
to  be  David  Dudley  Field  and  Joseph  T.  Bosworth,  afterwards 
judge  and  reporter  in  the  Superior  Court. 

A  student  at  the  School  in  1844,  writes (2)  : 

Mental  toil  told  heavily  upon  Judge  Story.  At  forty  he  began 
to  present  the  appearance  of  an  aged  man,  so  far  as  polished 
skull  and  telltale  furrows  on  the  face  concerned  physical  appear- 
ance. But  the  querulousness  of  age,  its  diminution  of  mental 
vigor  and  its  loss  of  physical  vigor,  were  ever  absent.  I  had 


(1)  Reminiscences  of  David  Dudley  Field,  by  A.  Oakey  Hall,  Green 
Bag,  Vol.  VI  (1894). 

(2)  Green  Bag,  Vol.  IX  (1897). 


58  HARVARD  LAW  SCHOOL. 

not  enjoyed  a  sight  of  him  until,  as  a  law  student,  I  confronted 
him  at  his  professional  desk.  I  recall  that  I  became  so  impressed 
with  his  majestic  presence,  his  genial  face,  his  musical  voice  and 
his  delightful  method  of  conversational  tutorship  on  that  occa- 
sion, that  I  lost  attention  to  that  first  lecture  in  contemplating 
the  great  jurist  and  in  musing  upon  my  knowledge  of  what  he 
had  achieved.  I  had  taken  to  his  house  a  letter  of  commendatory 
introduction  from  Theodore  Frelinghuysen,  the  Chancellor  of 
my  alumnus  university,  and  nothing  could  exceed  the  cordiality 
of  the  Story  welcome  in  his  study  at  his  beautiful  cottage  resi- 
dence ;  and  yet  such  interviews  from  and  with  students  must 
have  become  monotonous,  and  perhaps  irksome.  Such  individual 
admiration  could  be  always  seen  portrayed  upon  the  faces  of  my 
fellow  classmates  as  they  were  surveyed  in  the  act  of  listening 
and  gazing  upon  Story's  saint-like  face.  His  comments  were 
interspersed  with  such  appropriate  anecdotes  as  was  the  habit 
of  Abraham  Lincoln.  When  he  presided  at  the  Moot  Courts 
which  he  had  established  for  the  nisi  prius  practice  of  the  stu- 
dents or  for  their  views  upon  a  stated  controversy — generally 
patterned  from  some  case  in  his  circuit — Professor  Story  was  the 
embodiment  of  geniality  and  seemed  as  pleased  with  the  pro- 
ceedings as  would  be  a  child  at  blindman's  buff.  His  constant 
tenet  to  students  was  "the  nobility  and  attractiveness  of  the  legal 
profession."  As  matter  of  personal  pride,  I  fancy  he  was 
prouder  of  his  professorship  than  of  his  judgeship  or  author- 
ship. 

One  of  Story's  great  attractions  was  his  remarkable  power 
of  conversation.  "To  talk  was  natural  and  necessary  to  my 
father,"  wrote  his  son.  "His  earnestness  and  volubility  of 
speech  and  vivacious  gesticulation  afforded  the  necessary  stimula- 
tion to  this  system  and  was  his  real  exercise.  .  .  .  He  did 
not  often  dine  out  .  .  .  but  when  he  did  he  was  the  life 
and  spirit  of  the  table.  .  .  .  He  poured  forth  a  copious 
stream  of  talk,  rich  in  anecdote  and  reminiscence,  sparkling  with 
jest  and  raillery  or  flowing  in  a  deeper  channel  of  thought  and 
feeling.  At  such  times  his  face  lighted  up  with  the  most  lumin- 
ous of  smiles,  and  his  clear  joyous  laugh  provoked  an  irresisti- 
ble response." 

Again  his  son  writes :  "His  conversation  was  not  epigram- 
matic, condensed,  witty,  but  abundant,  genial,  continuous,  like 
a  fountain,  always  fresh  and  bubbling.  It  was  full  of  bright 
remark,  and  yet  it  was  rather  characterized  by  kindliness  and 
gaiety  of  spirits  than  by  brevity  and  point.  .  .  .  He  loved 
to  indulge  in  personal  reminiscences  of  the  prominent  men  he  had 


REMINISCENCES.  59 

known  and  of  anecdote  relating  to  politics  and  persons;  but  he 
disliked  personal  satire.  .  .  .  He  was  sometimes  too  profuse 
in  conversation;  yet,  so  refreshing  was  its  abundance,  so  full  of 
thought,  and  so  full-souled  and  hearty,  that  it  never  wearied." 

With  allowance  made  for  a  son's  partiality  the  above  descrip- 
tion is  largely  concurred  in  by  all  who  knew  Story. (i) 

The  following  interesting  letter  from  James  Kent  to  his  son 
William  Kent,  July  4,  1836,  illustrates  this  side  of  his  friend's 
personality  (2)  : 

Ruggles  and  I  went  on  Saturday  into  Judge  Story's  Circuit 
Court.  I  was  forced  in,  almost  by  duress,  by  Mr.  Charles  Sum- 
ner,  the  lawyer.  The  judge  was  in  the  midst  of  a  law  argument 
and  giving  his  opinion  on  a  point  in  the  case.  The  moment  he 
saw  me,  he  called  out  to  me  and  came  down  from  the  Bench  to 
the  Bar  and  shook  hands  with  me  and  introduced  me  to  the  law- 
yers who  were  there  arguing.  Judge  Davis,  the  District  Judge, 
came  from  the  Bench  and  sat  with  me,  and  the  cause  went  on. 
There  is  attention  and  honor  for  you !  I  then  went  into  the 
Supreme  Judicial  Court  of  Massachusetts,  and  the  Judges  were 
reading  opinions.  I  took  a  seat  on  the  front  counsel  bench, 
though  invited  to  take  a  seat  on  the  Bench.  When  I  went  out 
the  Chief  Justice,  Shaw,  whom  I  never  saw  before,  followed  me 
and  got  introduced  to  me.  In  the  afternoon  we  all  went  to 
Cambridge,  and  with  Judge  Story  to  Mount  Auburn.  I  admired 
and  was  awe-stricken  with  that  beautiful  and  interesting, 
silent  scene.  Last  evening  Ruggles  and  I  were  at  a  party  of  law- 
yers, got  up  by  Judge  Davis  for  me,  and  it  was  interesting, 
though  I  was  too  much  the  object  of  attention.  From  Judge 
Davis'  party  we  went  to  another  one  after  nine,  at  Judge  Put- 
nam's, and  that  was  in  honor  to  me.  Upon  the  whole,  the  scenes 
of  1823,  are  renewed  with  increased,  rather  than  diminished, 
attention.  But  Judge  Story's  power  of  conversation  among  the 
hills  and  monuments  and  deep  shady  graves  of  Mount  Auburn, 
was  incomparable.  He  led  Ma  by  the  arm  all  the  way.  and  he 
was  eloquence,  and  poetry,  and  pathos,  and  feeling  and  tender- 
ness, and  anecdote,  and  boundless  benignity,  all  personified  in  his 

(1)  Richard  Henry  Dana  wrote  in   1841  a  description  of  a  dinner  at 
Mr.  Abbott  Lawrence's  in   Park  Street,  Boston,  to  meet  Lord  Morpeth, 
at   which    Harrison    Gray   Otis,   George    Ticknor    and   Judge    Story   were 
present,    which    gives    another    view    of    Story.      It    was    evidently    an 
occasion  when  the  latter  was  not  in  his  usual  happy  vein.     "Mr.  Otis  was 
in  his  best  vein  and  we  young  men  could  easily  believe  that  he  had  been 
in  his  prime  the  best  conversationalist  in  the  land.     Judge  Story  talked 
more,  but  tediously,  and  without  the  variety,  brilliancy  and  tact  of  Otis 
— argued  like  a  lawyer  and  prosed  like  a  bookworm.     Otis  never  forgot 
he  was  a  gentleman  dining  out."     See  Richard  Henry  Dana,  Vol.  I,  by 
Charles  Francis  Adams  (1890). 

(2)  Memoirs  of  Chancellor  Kent,  by  William  Kent  (1898). 


60  HARVARD  LAW  SCHOOL. 

identical  person.     I  believe  he   is  the  most  accomplished  and 
ardent  and  enlightened  intellect  extant. 

It  was  not  alone  with  his  equals  and  with  his  students  that 
Story's  affability  and  powers  of  conversation  were  marked.  He 
had  so  delightful  a  simplicity  of  manner  that  he  attracted  and 
held  the  attention  of  all  with  whom  he  happened  to  be — trades- 
men, travelling  companions,  men,  women  and  children  of  all  sorts. 

It  was  one  of  the  well  recognized  institutions  of  Cambridge 
to  see  him  in  the  omnibus  to  Boston,  talking  with  whomsoever 
he  happened  to  be  seated  next.  In  the  stage  coaches  to  Washing- 
ton he  made  friends  with  all  travellers  and  entered  into  their 
interests  with  the  greatest  enthusiasm.  It  is  related  that  once  on 
the  Circuits  he  sat  on  the  box  discussing  with  the  coachman 
regarding  the  latters  family  affairs  and  crops.  And  when,  at  the 
end  of  the  journey,  the  coach  stopped  and  he  was  addressed  as, 
"Judge  Story",  by  someone  at  the  Inn,  the  coachman,  in  relat- 
ing the  episode,  said :  "You  see  he  knew  all  about  farming  mat- 
ters and  the  country  so  well,  that  I  thought  he  was  a  farmer  and 
one  of  us,  and  I  had  been  telling  him  all  sorts  of  trash  about 
myself.  When  I  heard  him  called  Judge  Story,  I  felt  just  as  if 
I  could  have  slinked  through  the  leetlest  keyhole  in  the  uni- 
varse." 

"A  more  generous  man  never  lived",  writes  his  son.  "His 
charity  did  not  stop  with  his  purse.  He  gave  away  freely  of  his 
labor  and  services,  of  his  learning  and  thought.  .  .  .  Some- 
thing he  found  to  praise  in  all.  He  cherished  animosity  to  no 
living  being."  His  spirit  was  gay,  sunny,  fresh  and  happy,  and 
his  temper  amiable — never  sarcastic  or  disputatious,  and  always 
sympathetic.  Of  his  delightful  sense  of  humor  many  stories  are 
told.  Josiah  Quincy,  Jr.  relates  the  following(i)  : 

The  invitation  to  go  to  Washington  with  Judge  Story  did  not 
imply  any  promise  of  attention  after  we  arrived  in  that  city,  as 
he  was  careful  to  point  out  when  I  received  it.  "The  fact  is," 
said  he,  "I  can  do  very  little  for  you  there,  as  we  judges  take  no 
part  in  the  society  of  the  place.  We  dine  once  a  year  with  the 
President,  and  that  is  all.  On  other  days  we  take  our  dinner 
together,  and  discuss  at  table  the  questions  which  are  argued 
before  us.  We  are  great  ascetics,  and  even  deny  ourselves  wine, 

(i)  The  whole  account  of  A  Journey  with  Judge  Stary  in  Figures  of 
the  Past,  by  Josiah  Quincy,  Jr.,  (1883),  is  of  most  vivid  interest  for  its 
portrayal  of  the  personality  of  the  man. 


REMINISCENCES.  61 

except  in  wet  weather."  Here  the  Judge  paused,  as  if  thinking 
that  the  act  of  mortification  he  had  mentioned  placed  too  severe 
a  tax  upon  human  credulity,  and  presently  added :  "What  I  say 
about  wine,  sir,  gives  you  our  rule;  but  it  does  sometimes  hap- 
pen that  the  Chief  Justice  will  say  to  me,  when  the  cloth  is 
removed,  'Brother  Story,  step  to  the  window  and  see  if  it  does 
not  look  like  rain.'  And  if  I  tell  him  that  the  sun  is  shining 
brightly,  Judge  Marshall  will  sometimes  reply,  'All  the  better; 
for  our  jurisdiction  extends  over  so  large  a  territory  that  the 
doctrine  of  chances  makes  it  certain  that  it  must  be  raining 
somewhere.'  You  know  that  the  Chief  was  brought  up  upon 
Federalism  and  Madeira,  and  he  is  not  the  man  to  outgrow  his 
early  prejudices." 

And  Edmund  Quincy,  in  his  life  of  his  father,  tells  the  fol- 
lowing anecdote  ( I )  : 

I  have  related,  in  telling  my  father's  doings  as  President,  how 
he  never  failed  to  set  the  sleepy  students  an  example  of  rigid 
punctuality  at  morning  chapel.  He  deserves  the  less  credit  for 
this  example,  however,  in  that  he  had  contracted,  long  years 
before,  the  habit  of  rising  every  morning,  winter  and  summer, 
at  four  o'clock,  so  that  he  had  been  long  astir  before  the  prayer- 
bell  run  out  its  unwelcome  summons.  This  excess  in  early  hours, 
however,  like  every  other  excess,  brought  its  penalty  along  with 
it.  Nature  would  not  be  cheated  of  her  dues,  and,  if  they  were 
not  paid  in  season,  she  would  exact  them  out  of  season.  Accord- 
ingly, my  father  was  sure  to  drop  asleep,  wherever  he  might  be, 
when  his  mind  was  not  actively  occupied ;  sometimes  even  in 
company,  if  the  conversation  were  not  especially  animated,  and 
always  as  soon  as  he  took  his  seat  in  his  gig,  or  "sulky",  .  .  . 
One  day,  Mr.  John  Quincy  Adams,  who  was  addicted  to  the  same 
vice  of  intemperate  early  rising,  with  much  the  same  conse- 
quences, was  visiting  my  father,  who  invited  him  to  go  into 
Judge  Story's  lecture-room,  and  hear  his  lecture  to  his  law 
class.  Now  Judge  Story  did  not  accept  the  philosophy  of  his 
two  friends  in  this  particular,  and  would  insist  that  it  was  a  more 
excellent  way  to  take  out  one's  allowance  of  sleep  in  bed,  and 
be  wide  awake  when  out  of  it, — which  he  himself  most  assuredly 
always  was.  The  Judge  received  the  two  Presidents  gladly,  and 
placed  them  in  the  seat  of  honor  on  the  dais  by  his  side,  fronting 
the  class,  and  proceeded  with  his  lecture.  It  was  not  long  before, 
glancing  his  eye  aside  to  see  how  his  guests  were  impressed  by 
his  doctrine,  he  saw  that  they  were  both  of  them  sound  asleep, 
and  he  saw  that  the  class  saw  it  too.  Pausing  a  moment  in  his 
swift  career  of  speech,  he  pointed  to  the  two  sleeping  figures, 
and  uttered  these  words  of  warning:  "Gentlemen,  you  see  before 


(i)     Memoir    of  Josiah  Quincy,  by  Edmund  Quincy. 


62  HARVARD  LAW  SCHOOL. 

you  a  melancholy  example  of  the  evil  effects  of  early  rising." 
The  shout  of  laughter  with  which  this  judicial  obiter  dictum 
was  received,  effectually  aroused  the  sleepers,  and  it  is  to  be 
hoped  that  they  heard  and  profited  by  the  remainder  of  the  dis- 
course. .  .  . 

To  Story's  qualities  as  an  instructor,  Professor  Greenleaf  paid 
this  tribute  in  his  eulogy: 

As  an  instructor  in  jurisprudence,  he  never  lost  sight  of  his 
position  as  a  judge,  before  whom  the  subjects  of  his  lectures 
might  again  come  under  consideration.  And  while  every  topic 
of  settled  law  was  discussed  in  the  lecture-room  with  his 
abundant  learning  and  happy  freedom,  he  carefully  refrained 
from  expressing  an  opinion  upon  open  questions,  and  still  more 
upon  cases  stated  to  him.  Indeed,  his  sagacity  in  distinguishing 
between  a  real  and  fictitious  case  was  so  well  known,  that  in  this 
way  he  was  rarely  approached.  In  his  statements  of  the  exist- 
ing law,  he  was  remarkably  clear  and  exact;  copious  and  strik- 
ing in  his  illustrations ;  rich  in  anecdote  and  historical  remin- 
iscence; and  familiar  with  the  peculiar  characters  of  all  the 
Judges  in  Westminster  Hall,  to  whose  judgments  we  are  accus- 
tomed to  refer.  You,  my  pupils,  and  all  who  have  had  the  priv- 
ilege of  sitting  at  his  feet,  will  attest  his  unwearied  patience  and 
kindness  in  answering  the  various  inquiries  of  the  student;  the 
native  delight  with  which  he  expatiated  upon  the  great  doctrines 
he  expounded,  unconscious  of  the  waning  hour;  his  contagious 
enthusiasm  inspiring  all  around  him  with  love  for  the  science, 
and  cheering  onward  the  most  sluggish  and  disheartened  to  new 
vigor  in  the  course. 

As  Story's  lectures  were  wholly  extempore  and  delivered  with- 
out minutes,  they  were  never  confined  to  any  set  limits.  The 
text  book  furnished  the  theme;  but  a  chance  remark  at  the 
beginning  of  the  hour  would  frequently  start  a  train  of  thought 
more  or  less  connected  with  the  subject  which  he  would  pursue 
for  the  whole  of  the  remaining  time.  His  son,  W.  W.  Story, 
thus  describes  such  a  lecture: 

One  occasion  I  well  remember,  during  the  time  when  I  was  a 
student  at  the  School.  It  was  the  last  lecture  of  the  term,  on 
the  Constitution,  and  it  was  not  probable  that  the  whole  class 
would  ever  again  meet.  As  my  father  took  his  seat  to  com- 
mence the  exercise,  this  fact  seemed  to  strike  his  mind,  and  he 
began  by  alluding  to  it.  Moved,  as  he  proceeded,  by  the  train 
of  thought  and  feeling  thus  accidentally  set  in  motion,  he  slid 
into  a  glowing  discourse  upon  the  principles  and  objects  of  the 


Dane  Hall — 1845-1871 


REMINISCENCES.  63 

Constitution ;  the  views  of  the  great  men  of  the  Revolution,  by 
whom  it  was  drawn;  the  position  of  our  country;  the  dangers 
to  which  it  was  exposed ;  and  the  duty  of  every  citizen  to  see 
that  the  republic  sustained  no  detriment.  He  spoke,  as  he  went 
on,  of  the  hopes  for  freedom  with  which  America  was  freighted ; 
of  the  anxious  eyes  that  watched  it  in  its  progress;  of  the  voices 
that  called  from  land  to  land  to  inquire  of  its  welfare ;  closing 
in  an  exhortation  to  the  students  to  labor  for  the  furtherance 
of  justice  and  free  principles ;  to  expand,  deepen,  and  liberalize 
the  law;  to  discard  low  and  ambitious  motives  in  the  profession, 
and  to  seek  in  all  their  public  acts  to  establish  the  foundations  of 
right  and  truth.  The  hour  flew  by  while  we  yet  listened  in  silent 
attention  to  this  touching,  earnest,  and  eloquent  discourse,  and 
the  clang  of  the  bell  broke  it  off  at  its  culminating  point.  In 
returning  home  with  him,  I  remarked  how  much  I  had  been  im- 
pressed with  his  remarks,  and  he  answered :  "I  was  entirely  led 
away,  and  spoke  without  preparation.  Indeed,  I  had  not  the 
slightest  intention  of  saying  a  word  of  the  kind  when  I  entered 
the  room". 

And  again,  his  son  writes : 

His  lecture  room  was  never  dull.  Whatever  might  be  the 
subject  it  was  treated  with  such  force  and  earnestness,  such 
warmth  and  geniality,  that  no  one  could  listen  without  interest. 
The  room  was  always  crowded.  No  subject  was  so  trite  and 
stale  that  it  did  not  bloom  afresh  at  his  touch.  ...  So 
vivacious  was  he  and  so  prodigal  in  his  learning,  that  the  fear 
of  every  newcomer  was  lest  he  should  exhaust  himself.  Each 
lecture  seemed  an  exception  at  first,  but  the  stream  never  ceased. 
His  own  enthusiasm  imparted  itself  magnetically  to  his  hearers. 
His  pupils  learned  by  sympathy,  or,  to  use  our  fine  Saxon  phrase 
— by  heart.  He  clothed  his  teaching  with  such  fascinating 
forms, — investing  naked  principles  with  the  drapery  and  color 
of  actual  illustration, — sustaining  the  attention  by  continual  allu- 
sions to  interesting  incidents  and  anecdotes,  which  he  interwove 
with  his  lectures, — stimulating  the  ambition  by  eloquent  appeals 
and  exhortations,  as  well  as  by  holding  up  as  examples  the  lives 
of  distinguished  men  with  whom  he  had  come  in  contact, — and 
arousing  the  timid  by  recounting  the  victories  won  by  diligence 
over  difficulties  and  discouragements, — that  he  who  felt  no 
quickening  of  the  pulse,  no  blazing  of  his  ambition,  must  have 
been  dull  and  hopeless  indeed. 

His  familiar  bearing  to  the  students  invariably  attached  them 
to  him.  Many  who  had  come  determined  not  to  like  him,  and 
who  had  been  brought  up  to  consider  his  political  views  heretical, 
and  his  constitutional  opinions  unsound,  ended  by  becoming  his 
ardent  advocates  and  admirers.  Affection  begets  affection.  In 
the  students  he  was  truly  interested.  He  always  called  them  "my 


64  HARVARD  LAW  SCHOOL. 

boys,"  and  felt  towards  them  as  if  they  were  all  members  of 
one  family  with  him.  He  was  as  familiar  to  them  as  if  he  were 
one  of  them,  assuming  no  airs,  and  claiming  no  formal  respect. 
Yet  there  was  never  an  occasion  where  he  received  from  them 
any  but  the  most  respectful  consideration.  His  interest  in  them 
outlived  their  term  as  students  and  accompanied  them  into  life. 
Earnestly  he  watched  them  in  their  professional  career,  rejoic- 
ing in  tidings  of  their  success,  and  sorrowing  in  their  disappoint- 
ments and  failures. 

In  a  word,  he  loved  his  position ;  and  his  never- failing  vivacity  ; 
his  winning  smile  that  played  lambent  as  heat-lightning  around 
his  varying  countenance ;  his  frank  manner ;  his  contagious,  joy- 
ous, and  irresistible  laugh ;  and  the  fertility,  unconsciousness 
and  simplicity  of  his  nature,  endeared  him  to  everyone  within 
the  circle  of  his  influence,  and  made  him  as  delightful  in  the 
lecture-room  as  in  his  home. 

Of  his  personal  appearance,  his  son  gives  the  following  descrip- 
tion: 

In  his  movements  he  was  restless  and  impulsive,  walking  very 
rapidly,  and  with  a  quick,  short  step,  and  glancing  vivaciously 
about  him.  In  his  youth  his  hair  was  auburn,  and  clustered 
around  his  head  in  thick  ringlets.  By  the  time  he  became  a 
Judge,  it  began  to  wear  away  from  his  temples  and  crown,  and 
during  the  latter  portion  of  life  his  head,  in  the  front  and  upper 
part,  was  bald,  saving  a  slight  tuft  of  hair  on  the  forehead,  and 
was  surrounded  behind  by  a  thick  mass  of  fine,  silvery  hair.  His 
forehead  was  smooth  and  round,  rising  domelike  over  his  prom- 
inent and  flexible  eyebrows,  beneath  which  glanced  two  eager 
blue  eyes.  His  mouth  was  large  and  full  of  sensibility.  The 
muscular  action  of  his  face  was  very  great,  and  its  flexibility 
and  variety  of  expression  remarkable. 

His  face  was  a  benediction.  Through  it  shone  a  benign  light, 
whose  flame  was  fed  by  happy  thoughts  and  gentle  desires.  His 
laugh  was  clear,  hearty,  ringing,  and  exhilarating.  His  voice 
was  of  the  medium  pitch,  of  great  variety  of  intonation,  and  ris- 
ing in  the  scale  as  he  became  earnest  and  impassioned,  and  while 
he  spoke,  his  face  was  haunted  by  a  changeful  smile,  which 
played  around  it,  and  flashed  across  it  with  auroral  light. 

The  following  description  by  his  old  pupil  and  firm  friend, 
George  S.  Hillard,  well  sums  up  Story's  whole  personality (i)  : 

About  5  feet  8  inches  in  height  with  rather  broad  shoulders 
and  a  compact  and  active  figure.  He  was  very  animated  in  his 
movements,  and  to  the  last  moved  with  the  quick  elastic  step  of 

(i)     See  Mass.  Hist.  Soc.  Proc.,  rst  Series,  Vol.  X. 


REMINISCENCES.  65 

youth.  His  complexion  was  fair,  his  eyes  were  blue,  and  his  hair 
in  youth  was  auburn,  but  in  early  manhood  he  became  bald.  His 
mouth  was  large  and  full  of  expression.  Of  the  many  portraits 
and  busts  which  were  taken  of  him,  there  is  no  one  which  re- 
produces the  full  charm  of  his  countenance,  lighted  up  as  it  was 
by  the  readiest  and  most  beaming  of  smiles,  and  glowing  with 
kindliness  of  heart  and  unaffected  sympathy.  His  manners  were 
simple,  unassuming  and  cordial.  Everything  about  him — his 
look  of  welcome,  the  warm  grasp  of  his  hand,  his  hearty  and 
contagious  laugh,  was  expressive  of  a  happy  temperament,  an 
affectionate  heart  and  a  spirit  singularly  sweet  and  sunny.  .  .  . 
He  never  lost  a  friend  but  by  death.  .  .  .  His  latest  friends 
were  the  children  of  those  who  started  life  with  him. 

Every  pupil  who  came  within  the  sphere  of  his  influence  felt 
the  magnetism  of  his  presence.  His  glowing  countenance,  his 
earnest  manner,  his  cordial  smile,  acted  with  kindling  and  ani- 
mating effect  upon  all.  .  .  . 

In  his  lecture  room  there  was  nothing  of  formality  or  stiff- 
ness; everything  was  easy  and  unceremonious;  the  great  lawyer 
and  magistrate — too  great  to  require  any  barriers  to  protect  his 
dignity  from  a  near  approach — was  the  most  familiar  and  playful 
of  men.  But  never  was  there  for  a  moment  on  the  part  of  the 
young  men  who  sat  under  his  instruction  the  slightest  expres- 
sion of  disrespect,  never  was  the  relation  between  them  for- 
gotten. His  pupils  felt  for  him  a  peculiar  mixture  of  veneration, 
gratitude  and  love.  He  became  the  personal  friend  of  all  who 
showed  a  right  to  his  friendship  by  their  talent,  industry  and 
worth. 

Perhaps  the  most  concise  tribute  to  him  was  that  paid  by 
Josiah  Quincy  in  1851(1)  : 

His  memory  is  bound  to  my  affections  by  cords  which  death 
only  can  sever.  Great  as  were  your  father's  intellectual  powers, 
those  which  had  their  origin  in  his  heart  were  still  greater.  His 
manners  were  so  courteous;  his  spirit  in  private  society  was  so 
gentle ;  his  conversational  powers  so  extraordinary ;  the  extent  of 
his  acquirements  so  wide ;  his  knowledge  so  various  and  thorough  ; 
the  readiness  and  even  profusion  with  which  he  bestowed  on  his 
friends  his  intellectual  possessions,  at  their  call  so  great,  that  they 
rendered  him  to  his  intimates  intensely  interesting  and  endear- 
ing. 

And  as  an  example  of  Story's  widespread  friendships,  outside 
his  native  land,  the  following  tributes  from  English  friends  are 
especially  touching. 

(i)     Letter  to  W.  W.  Story,  August  20,  1851,  in  Life  and  Letters  of 
Joseph  Story,  Vol.  II. 
5 


66  HARVARD  LAW  SCHOOL. 

T.  G.  Grattan,  writing  to  Mrs.  Trollope  in  1841,  said(i)  : 

At  Cambridge,  three  miles  off,  we  have  Judge  Story  of  the 
Supreme  Court,  eloquent,  deeply  learned,  garrulous,  lively, 
amiable,  excellent  in  all  and  every  way  that  a  mortal  can  be. 
He  is  decidedly  the  gem  of  this  Western  world. 

And  the  noted  actor,  W.  C.  Macready,  wrote  in  his  diary, 
September  29,  1845(2) : 

A  newspaper  from  America  directed  by  Charles  Sumner, 
which  I  joyfully  opened ;  to  be  struck  down  with  anguish  in  read- 
ing at  the  head  of  the  column  "Funeral  of  Mr.  Justice  Story." 
That  great  and  good  man — that  dear  and  reverend  and  inestim- 
able friend — is  taken  from  us!  Vale,  amice  dilecte.et  reverende 
• — vale!  vale! 

Harriet  Martineau,  writing  of  her  visit  to  the  United  States  in 
1834-35.  said (3)  : 

Our  active  minded,  genial  friend,  Judge  Story,  found  time  to 
visit  us  frequently,  though  he  is  one  of  the  busiest  men  in  the 
world ;  writing  half  a  dozen  great  law-books  every  year ;  having 
his  full  share  of  the  business  of  the  Supreme  Court  upon  his 
hands ;  his  professorship  to  attend  to ;  the  District  Court  at  home 
in  Massachusetts,  and  a  correspondence  which  spreads  half  over 
the  world.  His  talk  would  gush  out  for  hours,  and  there  was 
never  too  much  of  it  for  us ;  it  is  so  heartfelt,  so  lively,  so  vari- 
ous; and  his  face  all  the  while,  notwithstanding  his  gray  hair, 
showing  all  the  mobility  and  ingeniousness  of  a  child's.  There 
is  no  tolerable  portrait  of  Judge  Story,  and  there  never  will  be. 
I  should  like  to  bring  him  face  to  face  with  a  person  who  enter- 
tains the  common  English  idea  of  how  an  American  looks  and 
behaves.  I  should  like  to  see  what  such  a  one  would  make  of 
the  quick  smiles,  the  glistening  eye,  the  gleeful  tone,  with  passing 
touches  of  sentiment ;  the  innocent  self-complacency,  the  con- 
fiding, devoted  affections  of  the  great  American  lawyer.  The 
preconception  would  be  totally  at  fault. 

The  supremacy  of  Story's  books  in  this  country  is  well  known. 
There  remains  only  to  be  mentioned  their  great  influence  on  the 
law  of  other  countries.  As  a  jurist  of  international  reputation, 


(1)  What  I  Remember,  by  T.  A.  Trollope. 

(2)  Reminiscences  from  America,  by  W.  C.  Macready. 

This  and  the  Grattan  letter  are  not  quoted  by  W.  W.  Story  in  his  life 
of  his  father. 

(3)  Retrospect  of  Western  Travel,  by  Harriet  Martineau  (1838). 


REMINISCENCES.  67 

Story  was  the  first  American  lawyer  whose  words  were  cited 
as  authority  outside  of  the  United  States.(i) 

The  publication  of  his  Conflict  of  Laws  was  greeted  with  uni- 
versal praise  by  the  entire  foreign  press,  and  was  hailed  by  foreign 
jurists  as  a  work  of  the  greatest  importance  and  value.  It  was 
at  once  cited  as  authority  in  the  English  Courts.  Both  Lord 
Chancellor  Lyndhurst  and  Lord  Chief  Justice  Denman  were  re- 
ported by  Mr.  Justice  Vaughan  in  a  letter  to  Story  of  January 
i,  1835,  as  greatly  impressed  with  the  Commentaries  on  the  Con- 
stitution, Bailments  and  Conflict  of  Laws,  and  he  continues, 
"I  shall  be  much  disappointed  if  they  do  not  make  frequent  ref- 
erence to  your  works  as  containing  a  mine  of  precious  ore  which 
will  abundantly  reward  the  pains  of  searching  for  it."  His 
Equity  Jurisprudence  drew  from  Vaughan  in  1837  similar  en- 
thusiastic praise. 


(i)  The  attitude  of  England  towards  the  United  States  in  legal  matters 
may  be  judged  from  the  following  comments: 

In  1820,  Sydney  Smith  published  in  the  Edinburgh  Review  his  notorious 
attack  on  America,  in  which  he  said :  "In  the  four  quarters  of  the  globe, 
who  reads  an  American  book?  .  .  .  During  the  thirty  or  forty  years 
of  their  independence,  they  have  done  absolutely  nothing  for  the  sciences, 
for  the  arts,  for  literature,  or  even  for  statesmanlike  studies  of  politics  or 
political  economy." 

That  this  sweeping  condemnation  did  not  apply  to  legal  literature  in  the 
minds  of  Englishmen  may  be  seen,  however,  from  the  fact  that,  fourteen 
years  previously,  William  D.  Evans,  the  translator  of  Pothier  on  Contracts 
wrote  in  his  introduction,  in  1806:  "Some  valuable  reports  have  been  pub- 
lished (in  America)  which  indicate  a  scientific  and  enlightened  investiga- 
tion of  judicial  questions,  and  which  the  lawyers  of  the  mother  country 
need  not  feel  a  disgrace  in  resorting  to  for  assistance."  The  first  English 
case  in  which  an  American  decision  (Blighfs  Lessee  v.  Rochester f  ^ 
Wheaton  535.)  was  expressly  cited  by  counsel  was  in  1824,  when  the  Court 
of  King's  Bench  remarked,  in  Thomas  v.  Acklam,  2  Barn,  and  Cressw.  779. 

"It  is  a  great  satisfaction  for  us  to  know  that  this  our  judgment  is  con- 
formable to  a  decision  of  the  Supreme  Court  of  the  United  States  of  Amer- 
ica upon  a  similar  question" — (See  Amer.  Jurist,  Vol.  VIII,  October  1832). 

In  1832,  the  English  law  magazine,  the  Legal  Observer  contained  the  fol- 
lowing significant  item :  "We  very  lately  congratulated  our  readers  on  the 
good  understanding  which  appeared  to  subsist  between  the  lawyers  of  this 
country  and  of  America ;  but  the  strongest  proof  of  it  was  given  on  Thurs- 
day, the  26th  of  Jan.,  when  Lord  Tenterden  took  occasion  to  inform  the 
Bar  that  he  had  received  four  volumes  of  the  reports  of  the  Superior 
Courts  of  the  United  States,  edited  by  Mr.  Peters,  and  that  it  was  his 
Lordship's  intention  to  place  them  in  the  Library  of  the  Court  of  King's 
Bench.  He  also  stated,  that  although  he  had  not  been  able  to  give  much 
attention  to  the  Reports,  yet  as  far  as  he  had  looked  into  them,  they  ap- 
peared to  have  been  decided  on  sound  and  correct  principles.  We  have 
great  satisfaction  in  recording  this  occurrence ;  and  although  the  Courts 
here  would  probably  not  profess  to  be  guided  by  the  decisions  of  the 
Courts  in  America,  yet  we  conceive  the  reports  of  them  may  be  cited  as 
collateral  authority." — (See  Amer.  Jurist,  Vol.  VII,  July,  1832). 


68  HARVARD  LAW  SCHOOL. 

Mr.  Justice  Edward  Vaughan  Williams  of  the  Court  of  Com- 
mon Pleas,  wrote  October  3,  1839: 

It  would  be  impertinent  in  me  to  mention  to  you,  whose  name 
has  been  so  long  known  as  one  of  the  foremost  in  the  learning  of 
our  profession,  the  high  respect  which  I,  in  common  with  the  rest 
of  the  lawyers  of  Europe,  feel  for  your  great  talents  and  ac- 
quirements. 

And  the  same  year  Mr.  Justice  Coleridge  wrote  in  the  same 
strain :  English  lawyers,  like  John  William  Smith,  Sir  William 
W.  Follett  and  William  Burge,  also  joined  in  the  tributes  of 
praise. 

In  1841,  Mr.  Justice  Patterson  wrote  referring  to  the  Conflict 
of  Laws  as  "a  standard  work  to  which  we  constantly  refer  in  this 
country."  Baron  Gurney  pronounced  the  Commentaries  on 
Agency  to  be  an  "invaluable  work" ;  and  Baron  Parke  wrote  in 
similar  terms.  Lord  Denman,  in  letters  to  Sumner  and  Story, 
was  especially  commendatory  of  the  latter's  judicial  and  literary 
productions.  Lord  Campbell  wrote  in  1842,  that  he  surveyed 
"with  astonishment  your  extensive,  minute,  exact  and  familiar 
knowledge  of  English  legal  writers  in  every  department  of  the 
law.  Similar  testimony  to  your  judicial  learning,  I  make  no 
doubt,  would  be  offered  by  the  lawyers  of  France  and  Germany, 
as  well  as  of  America,  and  we  should  all  concur  in  placing  you 
at  the  head  of  the  jurists  of  the  present  age." 

James  T.  Austin,  Attorney  General  of  Massachusetts,  on  a 
visit  to  England  in  1843,  wrote  that  when  he  said  to  Lord  Den- 
man that  he  was  delighted  to  come  to  the  fountain  of  the  Com- 
mon law,  Denman  replied:  "We  must  go  to  you,  for  your 
Judge  Story  has  found  the  living  spring,  and  pours  out  its  waters 
most  liberally."(i) 

Edward  Everett,  Minister  to  England,  writing  June,  1843, 
at  the  time  when  it  was  expected  that  Story  would  visit  England, 
described  a  dinner  given  by  Lord  Brougham  and  Lord  Denman 
at  which  practically  the  entire  Bench  and  leaders  of  the  Bar 
had  assembled  to  meet  Story,  and  he  continued: 

For  an  American  Judge  to  be  daily  cited  in  the  British  Courts 
from  the  highest  of  all,  the  Court  of  Parliament,  down ;  and  to 
have  his  books  alluded  to  as  the  proof  that  certain  branches  of 


(i)     Law  Reporter,  Vol.  VI,  p.  382  (1842). 


REMINISCENCES.  69 

jurisprudence,  and  those  the  nobler  ones,  are  more  extensively 
and  successfully  cultivated  in  America  than  in  England,  may 
well  be  regarded  as  an  offset  for  the  taunts  of  tourists  and 
reviewers. 

And  Daniel  Webster  writing  from  London  to  Isaac  P.  Davis, 
June  24,  1839, 


Tell  Judge  Story  that  I  have  not  seen  a  lawyer  or  a  judge 
who  has  not  spoken  of  him  and  praised  his  writings.  If  he  were 
here,  he  would  be  one  of  the  greatest  professional  lions  that  ever 
prowled  through  the  metropolis. 

And  Carson  in  his  History  of  the  Supreme  Court  of  the  United 
States,  gives  the  following  characterization  of  Story's  labors 
which  may  well  serve  as  the  final  word  : 

As  a  logician  and  a  Constitutional  judge,  he  must  yield  to 
Marshall,  whom  he  far  surpassed  in  general  legal  scholarship; 
but  as  the  rival  of  Stowell  in  admiralty,  and  the  peer  of  Kent  in 
equity  jurisprudence,  as  the  sleepless  and  persistent  force  that 
urged  others  to  the  amendment  and  enlargement  of  our  national 
code  ;  as  the  Commentator  upon  the  Constitution,  as  a  teacher 
and  law  lecturer  without  an  equal,  as  a  judge  urbane  and  benign, 
and  as  a  man  of  spotless  purity,  he  wrought  so  long,  so  inde- 
fatigably,  and  so  well,  that  he  did  more,  perhaps,  than  any  other 
man  who  ever  sat  upon  the  Supreme  Bench,  to  popularize  the 
doctrines  of  that  great  tribunal  and  impress  their  importance  and 
grandeur  upon  the  public  mind.  (i) 


(i)  Rufus  Choate  in  his  Discourse  Commemorative  of  Daniel  Webster, 
delivered  at  Dartmouth  College,  July  27,  1853,  spoke  as  follows  of  the  in- 
fluence of  Story  on  Webster, — a  striking  illustration  of  Story's  effect  upon 
the  great  men  of  his  time. 

''I  reckon  next  to  his  (Jeremiah  Mason's)  for  the  earlier  time  of  Web- 
ster's life,  the  influence  of  the  learned  and  accomplished  Jeremiah  Smith ; 
and  next  to  these — some  may  believe  greater — is  that  of  Mr.  Justice  Story. 
That  extraordinary  person  had  been  admitted  to  the  Bar  in  Essex  County 
in  Massachusetts  in  1801,  and  he  was  engaged  in  many  trials  in  the  county 
of  Rockingham,  New  Hampshire,  before  Mr.  Webster  had  assumed  his  es- 
tablished position.  Their  political  opinions  differed ;  but  such  was  his  af- 
fluence of  knowledge  already;  such  his  stimulant  enthusiasm;  he  was 
burning  with  so  incredible  a  passion  for  learning  and  fame,  that  the  influ- 
ence on  the  still  young  Webster  was  instant ;  and  it  was  great  and  perma- 
nent." 


CHAPTER  XXVII. 
THE  MOOT  COURTS. 

The  portion  of  the  Law  School  work  in  which  Story  chiefly 
delighted  was  the  Moot  Courts. 

Gen.  Alexander  R.  Lawton  of  Georgia  (L.  S.  1841-42)  thus 
describes  this  institution,  in  his  speech  at  the  dinner  of  the  Harv- 
ard Law  School  Association  in  1886,  on  the  Law  School  Day 
of  the  25oth  celebration  of  the  founding  of  Harvard  College: 

Having  enjoyed  the  advantages  of  the  Harvard  Law  School 
in  the  last  days  of  Story  and  Greenleaf,  you  will  pardon  me  if  I 
am  not  only  loyal  to  their  memories,  but  also  to  their  methods 
of  teaching.  .  .  . 

Without  referring,  except  in  praise,  to  your  present  methods 
of  instruction,  I  stand  by  the  men  and  the  methods  of  that  day. 
.  .  .  What  a  privilege  to  sit  under  the  teachings  of  Story 
and  Greenleaf!  No  man  with  intellect  or  soul  could  fail  to  ap- 
preciate it.  Who  that  ever  felt  their  influence  can  forget  Story's 
genial  manner,  happy  temper  and  charming  methods  of  beguiling 
you  into  a  love  of  the  law. 

Some  of  you  have  seen  him  preside  at  a  Moot  Court  when 
he  would  say,  "Gentlemen,  this  is  the  High  Court  of  Errors  and 
Appeals  from  all  other  courts  in  the  world" ;  then  he  would  add, 
"Tell  me  not  of  the  last  decided  case  having  overruled  any  great 
principle, — not  at  all.  Give  me  the  principle,  even  if  you  find 
it  laid  down  in  the  Institutes  of  Hindu  Law." 

These  Moot  Courts  had  been  one  of  the  principal  features  of 
the  Law  School  under  Professor  Stearns ;  and  his  reports,  before 
quoted,  show  how  large  an  amount  of  time  was  devoted  to  them. 
Under  Story  and  Ashmun,  however,  they  received  even  greater 
attention.  They  were  held  in  the  lecture  room  once  a  week,  gen- 
erally on  Friday,  in  the  afternoon;  a  statement  of  facts  was 
drawn  up  by  the  Professor  the  week  before  the  argument,  and 
two  counsel  assigned  to  each  side,  one  from  the  Senior  class  and 
one  from  the  Junior  classes,  each  of  the  students  in  the  School 
receiving  a  case  in  rotation,  according  to  his  standing.  Later, 
when  the  numbers  of  the  School  increased  so  largely,  it  was 
found  necessary  to  hold  two  and  even  three  courts  in  a  week. 


MOOT  COURTS.  71 

Twice  a  year  there  were  jury  trials,  the  counsel  being  ap- 
pointed by  lot ;  and  twelve  undergraduates,  or  more  often  twelve 
Divinity  School  students  acting  as  jury.  On  these  occasions  the 
ordinary  exercises  of  the  School  were  suspended ;  a  sort  of  festi- 
val was  held;  and  the  contests  were  long,  sharp  and  earnest. 

All  the  students  who  have  written  of  the  School  have  uni- 
formly borne  witness  to  the  great  value  which  they  attached  to 
these  Moot  Courts  and  to  the  benefits  which  they  received  from 
the  discussions. 

Each  student  in  attendance,  whether  as  participant,  as  counsel, 
or  in  the  audience,  took  notes  of  the  cases,  transcribing  the  state- 
ment of  facts,  the  briefs  and  the  judge's  opinion  generally  in  full. 
Many  of  these  volumes  of  Moot  Court  Cases  have  been  pre- 
served. Some  have  been  presented  to  the  Law  Library,  and 
others  have  been  kindly  submitted  to  the  author  for  examina- 
tion. Many  of  them  contain  notes  and  observations  by  the  stu- 
dent which  throw  interesting  sidelights  on  the  arguments  and 
opinions. 

From  manuscript  reports  of  his  Moot  Court  Cases,  it  appears 
that  Story  took  the  fullest  notes  of  all  cases  cited  by  the  student 
counsel,  and  in  writing  his  opinion  he  considered  these  authori- 
ties as  carefully  as  if  he  were  holding  an  actual  court.  Of 
Story's  enthusiasm  in  this  work,  his  son  says  that :  "In  all  these 
trials  my  father  took  great  delight,  and  his  interest  stimulated 
these  young  men  in  their  efforts.  He  delivered  elaborate  oral 
judgments,  and  they,  in  their  turn,  prepared  their  cases  with 
great  zeal.  He  used  to  say  of  their  arguments  that  they  were 
often  quite  as  good  as  and  sometimes  better  than  those  of  the 
counsel  engaged  in  the  real  cases." 

He  entered  into  them  with  the  same  zest  and  gusto  as  if  they 
had  been  real — nay,  with  even  more  unfeigned  satisfaction.  He 
loved  to  see  the  young,  ardent  minds  of  the  students  first  meas- 
uring their  strength  in  argument.  There  was  all  the  interest 
with  none  of  the  responsibility  of  his  judicial  life." 

An  interesting  account  of  a  tribute  paid  by  Story  to  one  of 
the  arguments  made  by  a  student,  William  M.  Evarts  of  New 
York  (L.  S.  1838-39),  is  given  by  Richard  H.  Dana,  Jr. : 

The  most  successful  speech  made  at  the  School  during  the 
whole  time  I  was  there,  was  made  before  a  jury  of  under-gradu- 
ates,  Judge  Story  on  the  bench,  by  Wm.  M.  Evarts.  A  law  argu- 


72  HARVARD  LAW  SCHOOL. 

ment  which  he  introduced  into  it,  addressed  to  the  Court,  was 
the  most  complete,  systematic,  precise  and  elegantly  spoken  law 
argument  I  have  ever  yet  heard,  including  many  arguments  of 
our  most  distinguished  counsel  before  our  highest  courts.  Evarts' 
jury  argument  was  very  well  done,  but  Wm.  Davis  of  Plymouth, 
who  was  his  opponent,  did  quite  as  well  to  the  jury.  Evarts'  was 
the  best  law,  and  Davis'  the  best  jury,  argument  I  heard  in  the 
School.  When  charging  the  jury,  Judge  Story  said  he  must  rule 
the  law  in  certain  points  against  the  defendant's  counsel 
(Evarts)  though  they  had  been  argued  to  him  "in  a  manner  to 
which  I  cheerfully  do  homage."  Judge  Story  always  compli- 
mented liberally,  but  never  went  so  far  as  in  this  instance.  In- 
deed, Evarts  has  been  a  peculiar  young  man  at  school,  college, 
and  in  his  professional  studies.  If  he  does  not  become  dis- 
tinguished, he  will  disappoint  more  persons  than  any  other  young 
man  whom  I  have  ever  met  with. 

So  greatly  was  Story  impressed  by  one  of  Dana's  own  argu- 
ments in  a  Moot  Court  case  that  he  took  it  to  Washington  "to 
show  the  judges  there  how  his  students  argued  and  investigated 
such  cases."(i) 

On  many  occasions,  expressions  like  the  following  are  to  be 
found  in  Story's  formal  Moot  Court  opinions :  "The  arguments 
of  the  learned  counsel  contain  all  the  points  and  authorities  in 
the  case."  .  .  .  "This  case  has  been  admirably  argued,"  etc. 

From  a  bound  volume  of  Moot  Court  Cases  1829-30  (now  in 
the  Harvard  Law  Library),  it  appears  that  the  first  case  given 
out  by  Story  was  argued  at  the  first  term  by  Ivers  J.  Austin  and 
Francis  B.  Crowninshield  against  John  Codman  and  Charles  F. 
Deming.  (2)  It  was  an  actual  case,  reported  in  Mason's  Reports, 
Vol.  V.  Story  in  his  opinion  said,  "The  case  has  been  very 


(r)  See  Biographical  Sketches  of  Eminent  American  Lawyers  now 
Living,  by  John  Livingston  (1850). 

(2)  The  case  was  as  follows :  A  master  of  a  ship  owned  by  an  Amer- 
ican Merchant  is  ordered  by  his  owner  to  go  to  a  foreign  port  for  a 
cargo.  His  friends  at  the  foreign  port  fail  him.  He  then  takes  up,  on 
the  credit  of  the  owner,  but  without  his  authority,  a  cargo  from  a  for- 
eign merchant,  and  gives  him  bills  for  the  amount,  drawn  in  his  own 
name  on  his  owner's  correspondent  in  London,  intending  to  remit  to 
him  the  proceeds  of  the  cargo  from  another  foreign  port,  to  which  he 
is  bound  to  London.  He  advises  his  owner  of  his  proceedings  who  noti- 
fies them.  The  bills  are  sent  to  London,  but  before  the  proceeds  are  re- 
mitted, are  protested  for  non  acceptance.  Afterwards  the  proceeds  are 
remitted,  but  before  the  bills  are  due  the  correspondent  fails.  The  mas- 
ter is  poor  and  is  liable  as  the  drawer  of  the  bills ;  the  owner  is  rich  but 
will  not  pay.  Will  an  action  lie,  by  the  merchant  who  furnished  the  car- 
go, against  the  owner? 


MOOT  COURTS.  73 

well  argued,  but  one  thing  has  not  been  thought  of";  and  he 
proceeded  to  decide  the  case  on  this  "unthought  of"  point. 

The  next  case,  involving  a  question  of  pleading,  illustrates  the 
manner  in  which  Story  introduced  comments  on  the  legal  atmos- 
phere and  history  of  the  day: 

Lawrence  is  the  ablest  judge  on  the  English  bench  after  Mans- 
field except  Buller,  and  Chitty  is  one  of  the  ablest  pleaders  in 
London  and  has  30  or  40  students.  The  present  Chief  Justice 
is  a  very  good  pleader,  one  of  the  best  in  the  country.  I  should 
have  adhered  to  the  old  law,  but  now,  looking  at  the  modern 
practice  and  learned  dictum  in  the  books  relating  to  this  matter, 
if  I  was  sitting  in  judgment,  I  should  say  the  defendant  ought 
to  have  demurred  in  the  first  instance  and  not  surprised  the 
plaintiff. 

An  examination  of  these  Moot  Court  Case  Books  will  afford  a 
very  good  idea  of  the  limited  scope  of  the  law  of  those  days. 
Thus,  in  1829-30,  a  large  proportion  of  the  cases  given  out  were 
on  the  subject  of  agency,  pleading,  action  on  bonds,  and  bills  and 
notes. 

The  opinions  given  by  Professor  Ashmun  in  cases  argued  be- 
fore him  in  this  year,  are  full  of  interest  in  showing  his  inde- 
pendence of  thought.  Thus,  in  a  case  of  nuisance  and  riparian 
rights,  he  said: 

Angell  says  that  if  the  occupation  has  been  but  for  a  month 
yet  it  would  have  been  a  nuisance.  Now  if  this  is  the  correct 
principle,  plaintiff  must  recover.  Angell  is  not  a  man  of  much 
celebrity  and  his  opinion  is  of  no  authority  except  from  his  own 
reasoning.  He  cites  in  support  of  his  opinion,  Blackstone ;  but 
Blackstone  does  not  pretend  to  lay  down  positive  law,  only  his 
mere  impressions.  Opinions  are  not  of  authority,  but  only 
opinions  of  judges  acting  with  judicial  authority.  The  case 
rests  without  any  authority.  Vattel  is  also  cited,  but  he  is  speak- 
ing of  a  different  matter.  There  is  also  a  citation  from  Kent, 
but  it  is  merely  the  opinion  of  an  individual  and  cannot  stand 
before  the  authority  of  a  decided  case. 

In  another  case  he  said : 

The  point  was  never  before  the  court  for  a  judicial  decision, 
and  what  right  has  any  man  or  any  succession  of  men,  to  lay 
down  a  rule  for  future  generations  when  it  is  not  before  them 
for  a  judicial  decision,  though  the  opinions  of  Coke  and  such 
men  are  entitled  to  deference?  Now  there  is  no  reason  for  the 
rule  though  continued  for  a  long  time. 


74  HARVARD  LAW  SCHOOL. 

And  in  another  he  said,  "There  are  many  authorities  which  I 
have  not  had  time  to  examine,  but  I  can  pass  upon  it  to  my  own 
satisfaction  without  so  doing" ;  and  again,  "Still,  the  point  admits 
of  much  doubt,  and  I  may  hold  a  different  opinion  in  a  week's 
time." 

A  large  number  of  these  cases  given  out,  especially  by  Story, 
were  actual  cases,  which  had  been  or  were  to  be  argued  before 
him  in  either  the  United  States  Circuit  or  Supreme  Courts ;  and 
each  winter  he  would  bring  on  from  Washington  a  batch  of  print- 
ed records  for  use  in  the  School. 

Thus,  Feb.  16,  1845,  he  is  found  writing  to  Greenleaf : 

Your  information  as  to  the  closing  Moot  Courts  interested 
me  a  good  deal.  You  decided  the  pro-rata  freight  case  exactly 
as  I  should  have  done,  and  it  coincides  with  a  very  late  one  in 
England.  .  .  .  We  have  decided  one  this  very  term  of  great 
interest,  and  I  shall  bring  it  home  for  the  Moot  Courts.  I  have 
laid  aside  a  number  for  the  Moot  Courts,  some  of  which  are  very 
curious. 

Manuscript  notes  in  Story's  handwriting,  now  in  possession 
of  Professor  Greenleaf's  heirs,  show  that  in  the  spring  term 
of  1842,  before  the  decision  of  the  United  States  Supreme  Court 
has  reached  the  School,  Story  gave  out  in  a  Moot  Court,  the  fam- 
ous case  of  Swift  v.  Tyson  (16  Peters  i). 

In  a  review  by  the  Law  Reporter  for  May,  1848  (Vol.  XI) 
of  a  then  recently  decided  case  in  the  United  States  Supreme 
Court,  New  Jersey  Steam  Navigation  Company  v.  Merchants' 
Bank  (6  Howard,  344),  in  which  the  Steamboat  Company  had 
been  held  liable  for  destruction  of  property  carried  on  its  boat  by 
an  express  company,  the  following  statement  is  made: 

We  confidently  deny  the  correctness  of  the  decision,  because 
we  know  that  at  the  Moot  Court  of  the  Law  School  in  Cam- 
bridge in  July,  1845,  the  late  Judge  Story  assigned  this  very  case 
for  trial,  submitting  the  evidence  which  had  been  prepared  for 
the  hearing  at  Washington,  and  held  most  unequivocally  that, 
as  exclusive  credit  had  been  given  to  Harnden  &  Co.,  (the  Ex- 
press Co.,)  they  alone  were  liable. 

Professor  Greenleaf  also  followed  this  custom  and  gave  out 
many  cases  arising  in  the  Massachusetts  Supreme  Court,  among 
others,  in  1842,  the  famous  case  of  Ingalls  v.  Bills  (9  Metcalf 
i),  involving  the  liability  of  a  common  carrier  for  injury  to  a 


MOOT  COURTS.  75 

passenger  caused  by  a  latent  defect,  a  case  which  Greenleaf 
himself  had  argued  and  won  for  the  defendant. 

It  is  related  that  Greenleaf  on  one  occasion  prepared  as  a 
Moot  Court  case  for  argument  before  Judge  Story  in  the  Law 
School  a  case  which  he  expected  to  argue  himself  in  Washington. 
Unfortunately,  Story  was  called  away  before  the  case  was 
reached  in  the  Moot  Court,  and,  as  Greenleaf  used  to  mournfully 
tell  the  story,  "He  never  heard  that  case,  and  I  was  forced  to  sit 
upon  my  own  case." 

While  the  cases  given  out  by  Story  were  apt  to  be  confined  to 
the  subjects  of  commercial  law,  agency  and  equity,  those  assigned 
by  Greenleaf  touched  on  more  varied  lines. 

A  summary  of  the  Moot  Court  Case  Book  of  a  student  in 
1842-43  gives  an  idea  of  the  general  course  and  of  the  colloquial 
comments  made  by  the  student. (i) 

Beginning  March  20,  1843,  the  cases  being  all  before  Green- 
leaf  J.,  the  first  was  an  action  for  negligence  in  transporting  tea 
in  a  canal  boat ;  the  next  trover  for  a  watch ;  the  next  a  patent 
case.  In  a  case  of  riparian  rights  in  which  Stuart  W.  Fisk  and 
Jacob  B.  Jewett  were  for  the  plaintiff  and  Henry  Shippen  and 
Thomas  C.  Campbell  for  the  defendant,  the  student  notes  in  the 
place  where  the  plaintiff's  brief  should  be  reported — "Fisk — 
Tristram  Shandy — Shakespeare — Nonsense." 

After  this  case  followed  cases  on  ejectment  and  base  fee,  con- 
tribution, bills  of  exchange;  and  an  action  on  the  case  against  a 
common  carrier  for  injury  to  the  plaintiff's  baggage,  of  which 
the  following  report  and  comment  is  given  by  the  student. 

Boyd  v.  Lowell  Railroad  Corporation — It  appeared  in  evi- 
dence at  the  trial  that  the  plaintiff  was  a  passenger  in  defendant's 
train  of  cars,  his  trunk  or  baggage  being  in  the  baggage  car ;  that 
the  Railroad  ran  for  some  distance  through  a  pasture  and  along 
the  margin  of  the  Middlesex  Canal — that  the  pasture  was  stocked 
with  cattle,  several  of  which  were  lying  asleep  on  the  track  in 
the  night  when  the  injury  happened — that  there  was  no  fence 
between  the  Railroad  and  the  pasture  and  that  the  engine  com- 
ing in  contact  with  one  of  the  cattle  was  thrown  off  the  track 
and  preciptated  with  the  baggage  car  into  the  canal.  No  want  of 
care  or  vigilance  was  imputable  to  the  engineer  who  did  the  ut- 
most in  his  power,  on  perceiving  the  danger,  to  stop  the  train. 
Greenleaf,  J. — "The  question  now  is — does  this  fall  within  act  of 

(i)  See  Moot  Court  Cases,  compiled  by  Lewis  Baldwin  Parsons, 
loaned  (1907)  to  the  present  author. 


76  HARVARD  LAW  SCHOOL. 

God  ...  In  the  present  case  the  proximate  cause  was  brute 
force.  Does  such  force  fall  under  the  exception  of  superhuman 
agency.  The  cattle  were  on  the  Railroad  within  the  owner's  own 
close  and  it  is  not  liable." 

Note.  The  above  decision  gave  general  dissatisfaction  among 
the  law  students. 

The  next  case  was  a  bill  in  equity  to  enforce  payment  of  a 
legacy,  an  actual  case  occurring  the  previous  winter  in  South 
Carolina  argued  by  John  C.  Adams,  who  later  was  Instructor 
in  the  School,  after  Story's  death,  and  Oliver  Dimon  against 
James  Smith  and  George  W.  Huston,  on  which  the  student  com- 
ments, "The  best  argued  case  by  a  long  ways  since  I  have  been  in 
the  school." 

Then  followed  cases  on  partnership,  warehouseman's  liability, 
criminal  law,  statute  of  limitations,  guaranty,  warranty  on  sale 
of  ship,  bill  of  exchange,  bankruptcy,  charter  party,  trespass. 

Another  amusing  comment  is  noted  by  the  student  on  a  case 
of  trespass  for  injury  caused  by  the  breaking  of  the  harness  of 
a  hired  horse  and  gig. 

At  the  trial  it  appeared  that  the  plaintiff  who  lives  in  LaSalle 
Street,  Cambridge,  hired  the  gig  for  a  drive  to  Waltham,  and 
that  he  first  drove  towards  Divinity  Hall  to  take  up  a  friend  who 
was  to  accompany  him,  but  of  which  intention  the  defendant 
had  no  knowledge,  and  while  on  his  way  thither,  having 
touched  the  horse  with  the  whip  and  the  animal  thereupon  sud- 
denly quickening  his  pace,  one  of  the  traces  snapped.  .  .  . 
The  harness  was  evidently  rotten  but  it  did  not  appear  that  the 
defendant  actually  knew  of  its  insufficiency. 

Held  by  Greenleaf  J.  The  jury  ought  to  have  decided  whether 
the  plaintiff  was  injured  while  violating  his  contract.  .  .  . 
Without  doubt  he  may  go  on  any  of  the  ordinary  roads  to  Wal- 
tham and  need  not  take  the  most  travelled.  Certainly  he  may  go 
to  any  part  of  the  neighborhood  of  Waltham  or  this  place,  and 
not  violate  his  contract.  As  to  what  is  or  is  not  the  neighborhood 
ought  always  to  be  left  to  the  jury;  and  whether  Divinity  Hall 
was  beyond  the  immediate  neighborhood.  No  doubt  he  had  as 
good  right  to  start  from  Divinity  Hall  as  from  the  stable,  pro- 
vided it  was  in  the  neighborhood. 

Query.  Suppose  a  man  hires  a  horse  and  buggy  expecting  to 
take  a  ride  with  his  wife,  must  she  come  down  and  get  in  at  the 
stable  for  fear  the  buggy  may  get  broken  in  going  up  to  Divinity 
Hall  after  her?  Bah! 


CHAPTER  XXVIII. 
THE  LIBRARY   1833-1845. 

Under  Story  and  Greenleaf,  the  Law  Library  increased  rapidly 
in  size  and  completeness,  owing  to  the  untiring  enthusiasm  of 
both  Professors  in  taking  advantage  of  every  chance  to  add  to 
its  resources.  The  prosperous  condition  of  the  finances  of  the 
School  was  also  a  large  factor. 

The  expenditure  for  books  from  1830  to  1845  was  as  follows. 

American.  Foreign.  Total. 

1830-31  $2436.69  $176.28  $2612.97 

1831-32  305-42  15-62  321-04 

1832-33  97J-24  412.05  1383-29 

1833-34  813.77  104.77  9!8-54 

1834-35  617.30  12.54  629.84 

l835-36  1002.78  294.26  1297.04 

1 836-37  527-68  58.92  586.60 

1837-38  1330-71                    1330-71 

1838-39  2131.70  382.51  2514.21 

1839-40  934-95  H4.59  1049.54 

1840-41  583-9°  695.97  1279.87 

1841-42  1658.94  480.58  2139.52 

1842-43  1100.88  577-48  1678.36 

1843-44                      2234.71 

1844-45  617.30  12.54  629.84 

» 

The  total  cost  from  1817  to  Aug.  31,  1846,  was  stated  by  the 
Treasurer  to  have  been  $32,493.87. 

After  the  removal  of  the  Law  Library  into  Dane  Hall  in  1832. 
Charles  Sumner,  then  Librarian,  reported  to  the  Visiting  Library 
Committee  of  the  Overseers,  July  12,  i833-(i)  that  it  then  con- 
sisted of  2,358  volumes,  of  which  1,554  were  kept  in  No.  I  Dane 
Law  College,  and  the  remainder  (being  duplicates  784  in  number) 
being  kept  in  No.  7  (the  Librarian's  room).  During  the  preced- 
ing year,  185  had  been  added,  chiefly  English  and  American  re- 
ports. He  also  reported:  "There  are  many  books  belonging  to 
the  Library  not  entered  upon  the  Catalogue ;  and  there  are  some 


(i)     See  Harv.  Coll.  Archives,  Reports  to  the  Overseers. 


78  HARVARD  LAW  SCHOOL. 

on  the  Catalogue  which  have  not  been  in  the  Library  since  the 
subscriber's  connection  therewith,  which  commenced  Sept.  i, 
1832.  Of  the  vols.  in  the  Library  on  Sept.  i,  1832,  there  is  but 
one  which  the  subscriber  now  finds  missing.  That  volume  is 
Greenleafs  Cases  Doubted  and  Overruled." 

From  this  small  collection  of  2,358  volumes  in  1833,  the  Library 
more  than  quadrupled  before  Story's  death.  The  various  Visit- 
ing Library  Committees  reported  to  the  Overseers  the  number 
of  books  as  follows:  Jan.  15,  1835,  3,280,  of  which  1,259  were 
duplicates  and  text  books  for  the  use  of  the  students ;  1836,  3,580 ; 
Jan.  17,  1839,  "about  4.ooo"(i);  Jan.  16,  1840,  5,415;  Jan.  20, 
1842,  6,600.  Greenleaf  reported  to  the  Overseers  the  number  of 
books,  Oct.  17,  1843,  as  7»6io;  and  May  7,  1844,  7,960.  The  Com- 
mittee reported  Jan.  16,  1845,  tne  number  to  be  "about  8000"; 
and  on  Jan.  22,  1846,  it  reported  10,000  volumes.  In  this  esti- 
mate, however,  it  is  to  be  noted,  are  included  the  volumes  of  text 
books  which  were  supplied  free  to  students  i.  e.,  books  studied 
in  regular  course.  The  total,  therefore,  includes  undoubtedly 
two  or  three  thousand  duplicates. 

As  no  official  Catalogue  of  the  School  had  ever  been  compiled 
or  published,  Charles  Sumner  was  appointed,  in  1833,  to  perform 
the  work,  which  he  undertook  with  immense  zeal. 

The  following  letter  to  Story  Dec.  18,  1833,  describes  his 
work (2)  : 

During  last  summer  term,  I  gave  considerable  attention  to 
bibliography  and  to  a  special  study  of  our  Library,  as  I  did  also 
during  vacation.  I  commenced  the  preparation  of  the  Catalogue 
with  pen  and  ink,  about  a  week  before  Commencement,  continued 
at  work  for  about  a  month  during  a  large  portion  of  the  day, 
attending  at  the  same  time  of  course  to  my  duties  in  the  School 
and  also  to  my  regular  duties  as  Librarian.  The  correction  of 
the  press  .  .  .  has  taken  a  good  deal  of  time  from  the  ist 
month  of  the  term  to  the  very  last  week.  .  .  .  You  have 
asked  me  to  make  out  a  bill  against  the  College.  I  decline  doing 
so.  ...  What  I  have  done  was  done  more  in  love  of  the 
labor  and  of  those  whom  I  served  than  of  money.  .  .  . 

Your  affectionate  pupil 

Charles  Sumner. 


(1)  The  report  stated  "the  addition  being  chiefly  text  books  for  use  by 
the  students." 

(2)  See  Harv.  Coll.  Papers,  2nd  Series,  Vol.  VI. 

See  also  letter  from  College  Librarian,  T.  W.  Harris,  to  Story  prais- 
ing the  Law  Library  Catalogue  and  suggesting  $2  per  printed  page  as 
suitable  compensation. 

Sumner  was  paid  $160  for  his  work,  and  $30  additional  the  next  year. 


THE  LIBRARY  1833-1845.  79 

The  Librarians,  from  1830  to  1845,  were  students  in  the 
School,  appointed,  because  of  their  high  scholarship  or  other  de- 
serving qualities.  They  were  entitled  to  occupy,  free  of  rent, 
a  room  in  the  second  story  of  Dane  Hall,  and,  beginning  in  1839- 

40,  received  a  small  compensation, — $25  in  that  year.  $75  in  1840- 

41,  $25  in  1841-42,  $75  in  1842-43,  $100  in  1844-45. 

They  were  as  follows:  George  T.  Davis  (1830-31),  Wheelock 
S.  Upton  (1831-32),  Charles  Sumner  (1832-34),  George  Gibbs 
(1834-35),  Thomas  N.  Peirce  (1835-36),  Henry  Chapin  (1836- 
38),  George  Griggs  (1838-40),  William  R.  Woodward  (1840-41), 
James  A.  Abbott  (1841-43),  and  John  G.  Marvin  (1843-45). 

Their  duties  were  to  take  general  charge  of  the  Library,  giving 
out  the  books  and  text  books  to  the  students,  and  attending  to 
their  return.  As,  however,  they  were  engaged  during  the  daytime 
in  their  own  studies  and  recitations,  the  janitor  of  the  building 
kept  a  general  supervision  during  these  hours.  At  all  times,  the 
students  had  access  to  the  full  Library,  there  being  no  rail  or 
desk  to  prevent  the  freest  access  to  the  books.  With  a  system  so 
loose  and  casual,  it  is  surprising  that  so  few  books  were  lost  or 
missing  as  were  reported  by  the  various  Visiting  Library  Com- 
mittees, during  these  years — (16,  in  1835,  4  in  1836,  6  in  1842, 
37  in  1845).  I*1  ^37,  Greenleaf  reported  that,  since  1828,  only 
23  volumes  had  been  lost  and  not  recovered. 

After  the  publication  of  the  Catalogue,  an  80  page  pamphlet, 
in  1834,  it  became  the  object  of  the  Professors  to  fill  the  many 
gaps  in  the  sets  of  reports  and  in  the  lists  of  text  books;  and  a 
move  in  this  direction  was  at  once  begun.  Every  year,  a  long  list 
of  books  desired  was  sent  by  Professor  Greenleaf  to  the  College 
Treasurer ;  and  in  almost  every  instance  the  School  finances  were 
such  as  to  allow  of  their  purchase. (i) 

In  addition  to  purchases,  there  were  many  important  acquisi- 
tions by  gift. 

Chief  in  importance  was  the  magnificent  bequest  under  the 
will  of  Samuel  Livermore  of  New  Orleans,  announced  to  the 
Corporation  on  Dec.  31,  1833,  in  a  letter  from  Thomas  Haven, 


(i)  In  order  to  obtain  an  idea  of  the  books  so  purchased  reference 
may  be  made  to  letters  from  Greenleaf  to  Treasurer  T.  W.  Ward  in  Har- 
vard College  Archives,  Letters  to  the  Treasurer,  under  date  of  September  4, 
1833,  April  20,  1834,  May  25,  1835,  March  8,  1836,  Sept.  30,  1837,  March 
24,  1838,  May  19,  1838,  Apr.  2,  1839,  Nov.  8,  1839  Mar.  7,  1840,  April  29. 
1841.  May  20,  1841,  Feb.  5,  1842,  March  31,  1842,  April  22,  1842,  July  15, 
1842. 


8o  HARVARD  LAW  SCHOOL. 

Executor.  Under  this,  the  Law  School  received  his  whole  library 
of  Foreign  Law,  consisting  of  the  works  of  the  leading  civilians 
and  jurists  of  Europe,  and  of  books  of  Roman,  Spanish,  and 
French  Law,  about  401  volumes,  mostly  folio,  inventoried  at 
$6,000.  President  Quincy  in  his  History  of  the  University,  in 
1840,  said  of  this  library :  "as  a  collection  of  rare,  curious  and 
important  learning  it  is  probably  not  exceeded  and  perhaps  not 
equalled  by  any  other  collection  of  its  size  in  America,  if  it  be  in 
Europe." 

Samuel  Livermore  was  born  in  Portsmouth,  New  Hampshire, 
in  1786,  seven  years  after  the  birth  of  Story,  and  was  grandson 
of  the  famous  Samuel  Livermore,  Chief  Justice  of  New  Hamp- 
shire. He  graduated  from  Harvard  in  1804,  and  was  soon  admit- 
ted to  practise  before  the  Essex  Bar — a  fellow  member  with 
Story.  Later,  he  practised  in  Boston.  He  had  served  as  volun- 
teer on  the  frigate  Chesapeake  in  her  memorable  fight  with  the 
Shannon.  From  Boston,  he  moved  to  Baltimore,  and  thence  to 
New  Orleans,  where  he  entered  upon  the  deepest  study  of  French 
and  Spanish  Law  and  the  Law  of  Nations.  He  became  a  master 
of  international  jurisprudence,  his  opinions  being  asked  for  by 
lawyers  all  over  the  country.  In  1811,  he  published  a  book  on 
Principal  and  Agent  and  Sale  by  Auction,  which,  up  to  the  time 
of  Story's  work  on  Agency,  was  the  standard  authority  on  the 
subject. 

Charles  Sumner  was  set  at  work  preparing  a  Catalogue  of  this 
valuable  gift;  and  in  1835,  a  supplement  of  the  Library  Catalogue, 
of  16  pages  was  issued,  principally  composed  of  the  titles  of  the 
Livermore  bequest. 

In  1834,  Greenleaf  devised  a  scheme  for  enlarging  the  Library's 
collection  of  State  statutes,  the  want  of  which  he  stated,  in  his 
Report  of  Oct.  20,  1834,  "has  been  sensibly  felt" ;  and  he  sug- 
gested "the  expediency  of  an  application  to  the  Legislature  of 
Massachusetts  for  a  copy  of  the  Statutes  of  each  State,  in  all 
cases  where  the  Commonwealth  now  has  or  may  hereafter  re- 
ceive triplicate  copies;  and  the  adoption  of  some  measures  to 
induce  all  the  other  States  to  send  three  copies  of  their  statutes, 
in  future  annual  distributions." 

On  April  26.  1835,  Greenleaf  reported  that  his  application  to 
the  Governor  and  Legislature  of  Massachusetts  had  been  success- 
ful, and  that  a  standing  regulation  had  been  passed  under  which 
a  quantity  of  books  and  pamphlets  had  been  received,  which, 


THE  LIBRARY  1833-1845.  81 

•when  bound,  would  amount  to  100  volumes.  In  1836,  the  Visit- 
ing Library  Committee  reported  the  deposit  of  176  volumes  of 
these  State  statutes;  and  in  May,  1836,  Greenleaf  reported  the 
passage  by  the  Legislature  of  a  second  resolve  for  depositing  in 
the  Law  Library,  subject  to  public  order,  all  statutes  of  other 
States  then  in  the  State  Library,  except  one  copy. 

On  July  27,  1834,  the  Corporation,  on  recommendation  of  Story 
and  Greenleaf  voted  to  allow  the  transfer  of  23  books  and  sets 
of  reports  from  the  College  Library  to  the  Law  Library,  thus 
still  further  emphasizing  the  distinct  existence  of  the  two  separate 
institutions(i). 

Greenleaf  in  his  Report  of  May  I,  1838,  said:  "No  catalogue 
is  known  to  exist  of  the  books  transferred  from  the  General 
Library  to  the  Law  Library".  In  1836,  the  Visiting  Library 
Committee  reported  gifts  of  30  volumes  from  Story,  9  volumes 
of  the  original  manuscripts  of  Dane's  Abridgment,  and  2  folio 
volumes  of  manuscript  reports  of  cases  of  the  time  of  Elizabeth 
and  James  I,  presented  by  J.  J.  Wilkinson  of  the  Temple,  Lon- 
don, a  friend  and  correspondent  of  Story.  (2) 

(1)  The  vote  was  as  follows: 

"A  list  of  books  which  Judge  Story  and  Mr.  Greenleaf  recommend  to 
have  removed  to  the  Law  Library  (dated  May  8,  1834)  was  read  and 
thereupon  is  was  Voted  that  the  works  mentioned  in  that  list  be  removed 
from  the  College  Library  in  Dane  College — the  Librarian  taking  Profes- 
sor Greenleaf' s  receipt  therefore. 

The  List  is  as  follows — 

Atwood's  Jus  Anglorum  ab  Anliquo. 

Bacon's  Office  of  Constable. 

Bacon's  Abridgment  of  the  Lou;  5  Vols.  folio. 

Bochmcrc's  Electro  Juris  Civilie. 

Brooks'  Bibliotheca  Legum   Angliae. 

Brooks'  Reading  on  Magna  Charta. 

Chardon's  Code  des  Prizes. 

Clayton's  Reports. 

Codin's  Oeuvres. 

Codex  Theodosianus. 

Dramer's  Observationcs  Juris  Unh'crsi. 

Eden's  Jurisprudentia  etc.  Juris  Cil'ilis. 

Gayll's  Practicarum   Obseri'ationum. 

Grotianus'  Disceptationes  Forensium  Judiciorum. 

Kirby's  Reports. 

Ma-do.r  on  the  Exchequer.. 

RecopilacioH  dcs  Leges  de  los  Reynos  de  las  Indies. 

Schneidt's  Thesaurus  Juris  Franconia. 

Simpson  on  the  Study  of  the  Law. 

Stryckius'  Opera. 

Ustarcz  on  Commercial  Law  of  Spain  by  Kippox. 

Wilkin's  Leges  Anglo-Saxonico. 

Wolff  on  the  Law  of  Nature  and  Nations. 

(2)  Story  wrote  to  Wilkinson  Dec.  29,   1835: 

"The  two  MSS.  volumes  of  Reports,  I  have,  according  to  your  direc- 
I 


$2  HARVARD  LAW  SCHOOL. 

On  May  20,  1837,  Greenleaf  reported  that  "the  Law  Library 
has  been  adorned  recently  with  a  fine  portrait  of  Chancellor  Kent, 
(painted  by  A.  B.  Durand)  presented  by  friends,  and  also  a 
portrait  of  the  late  William  Johnson  of  South  Carolina,  late 
Justice  of  the  United  States  Supreme  Court,  by  one  of  his 
pupils". 

January  20,  1842,  the  Visiting  Committee  recorded  a  gift  to 
the  Library  from  Greenleaf  of  "the  manuscript  copies  of  records 
pertaining  to  his  own  Reports",  and  a  gift  from  Charles  Sumner 
of  three  volumes  of  English  briefs. 

Of  the  condition  of  the  Library,  in  general,  the  following  ac- 
counts were  given.  In  May,  1836,  Greenleaf  reported : 

The  Law  Library  is  in  good  preservation  but  it  is  to  be  re- 
gretted that  the  state  of  the  funds  will  not  yet  enable  us  to  com- 
plete* the  collection  of  American  Law  as  the  honor  of  the  Institu- 
tion as  well  as  the  interest  of  the  students,  would  seem  to  require. 
It  is  also  desirable  that  the  series  of  the  public  statutes  of  Great 
Britain  should  be  complete  up  to  the  present  time. 

Aug.  9,  1837,  he  reported  that  the  number  of  text  books  had 
been  considerably  increased  to  meet  the  increase  in  the  number 
of  students,  and  he  continued: 

The  Law  School  is  frequented  by  gentlemen  from  all  parts  of 
the  Union.  It  is  very  important  not  only  to  the  interests  of  the 
Institution  but  to  those  of  the  students  that  the  Library  should 
contain  all  the  statutes  and  reported  decisions  of  each,  as  well  as 
the  books  on  foreign  law  which  are  regarded  as  authorities  in 
any  State,  so  that  every  student  may  be  enabled  to  study  the 
jurisprudence  of  his  own  State  with  as  much  advantage  here  as 
at  home.  But  in  this  apparatus,  the  Library  is  still  quite  too  de- 
ficient. 

In  1840,  the  Visiting  Committee  reported,  Jan.  16,  that  "a  semi- 
annual examination  of  the  Library  is  made  in  each  of  the  vaca- 
tions" by  the  Librarian. 

In  1841,  a  second  edition  of  the  Library  Catalogue  was  issued 
of  154  pages,  with  69  pages  of  a  systematic  index,  and  a  preface 
by  William  R.  Woodward  (L.  S.  1840-41),  Librarian. 

In  1842,  the  Visiting  Committee  reported : 

tion,  placed  in  the  Law  Library  of  Harvard  University;  and  I  have  writ- 
ten in  them  a  suitable  mem.  of  the  giver  and  the  gift.  Herewith,  you 
will  receive  an  acknowledgment  from  my  brother  Professor  (Green- 
leaf),  a  most  excellent  man  and  a  most  excellent  lawyer." 


THE  LIBRARY  1833-1845.  83 

The  books  imported  during  the  past  year  with  those  already  in 
the  library  now  enable  the  student  to  verify  every  citation  in 
Blackstone's  Commentaries,  and  nearly  complete  the  collection  of 
European  Law  both  British  and  Continental  from  the  earliest 
period  down  to  the  i6th  Century,  discovering  to  the  student  all 
the  sources  of  modern  jurisprudence.  Some  very  valuable  addi- 
tions have  also  been  made  in  Asiatic  Law  particularly  those  in  use 
in  the  British  East  Indian  Empire.  The  collection  of  modern 
codes  of  Continental  Europe  is  more  ample  than  any  other  known 
to  exist  in  this  country. 

In  1843,  Oct.  17,  Greenleaf  reported: 

The  recent  addition  of  George  Stanton's  translation  of  the 
Digest  of  the  La^vs  of  China  in  one  volume  quarto  enables  us  now 
to  refer  to  a  respectable  part  of  the  laws  of  every  civilized  nation 
in  the  world  except  Russia,  Turkey  and  Persia. 

On  Jan.  16,  1845,  tne  Visiting  Committee  reported : 

The  Librarian  adds  that  it  is  yearly  enriched  with  all  the  State 
and  English  reports  together  with  elementary  treatises  thus  af- 
fording the  very  best  facilities  for  the  study  of  jurisprudence  and 
the  most  ample  repository  of  law  in  the  Union. 

Not  only  was  it  true  that  the  Harvard  Law  School  Library  at 
this  time  surpassed  every  other  law  library  in  the  United  States ; 
but  it  also  was  a  fact  that  no  law  library  in  England  or  on  the 
Continent  was  its  equal  in  scope.  And  Greenleaf  proudly  re- 
ported Oct.  21,  1845  : 

The  Law  Library,  by  comparing  its  Catalogue  with  those  of 
foreign  libraries  so  far  as  we  have  received  them,  is  found  to  ex- 
ceed any  other  known  to  us,  in  extent  of  its  range,  and  the  variety 
of  foreign  laws  which  it  comprises,  though  several  others  exceed 
it  in  numbers  of  volumes. 


CHAPTER  XXIX. 
COURSES,  GROWTH  AND  FINANCES  1833-1845. 

The  scope  of  the  Law  School  as  an  educational  institution  was 
set  forth  in  the  Catalogue  of  1830  and  in  all  the  Catalogues  and 
Circulars  of  the  School  until  1845  (an(l  indeed  to  1870),  prac- 
tically as  follows : 

The  design  of  this  Institution  is  to  afford  a  complete  course  of 
legal  education  for  gentlemen  intended  for  the  Bar  in  any  of  the 
United  States,  except  in  matters  of  mere  local  law  and  practice; 
and  also  a  systematic,  but  less  extensive  course  of  studies  in  Com- 
mercial Jurisprudence,  for  those  who  intend  to  devote  themselves 
exclusively  to  mercantile  pursuits. 

No  admission  examinations  were  held;  and  the  student,  on 
entering,  received  an  assignment  to  one  of  the  three  classes  (two 
prior  to  1833-34)  somewhat  arbitrarily  determined  by  his  ap- 
parent qualifications  or  previous  study. 

The  instruction  given  was  chiefly  by  means  of  lectures,  Green- 
leaf's  being  of  a  formal  character  and  usually  written ;  Story's 
methods  being  freer,  and  his  lectures  always  oral. 

In  a  letter  to  an  English  correspondent,  May  15,  1844,  Story 
thus  described  the  "Harvard  System"  of  that  day: 

Our  system  of  instruction  is  not  founded  upon  written  lectures, 
(which,  I  am  persuaded,  is  a  very  inadequate  mode,)  but  upon 
oral  lectures  connected  with  the  daily  studies  of  the  students  in 
the  various  works  which  they  study,  and  in  the  lecture-room 
where  they  are  all  assembled  in  classes,  and  where  they  undergo  a 
daily  examination ;  and  every  lecture  grows  out  of  the  very  pages 
of  the  volume  which  they  are  then  reading.  In  this  way  difficulties 
are  cleared  away,  additional  illustrations  suggested,  new  questions 
propounded,  and  doubts  raised,  and  occasionally  authorities  criti- 
cized, so  that  the  instructor  and  the  pupil  move  along  pari  passu, 
and  the  pupil  is  invited  to  state  his  doubts,  and  learns  how  to 
master  his  studies. 

Story's  son,  W.  W.  Story,  who  was  in  the  Law  School  1838-41, 
describes  his  father's  method  of  teaching  as  "by  familiar  dis- 
course and  conversational  commentary :" 


CONDITIONS  1833-1845.  85 

A  stated  portion  of  some  text-book  was  allotted  at  every  exer- 
cise as  the  subject  to  be  treated  at  the  next  meeting.  In  this  the 
students  prepared  themselves.  My  father  commenced  by  making 
general  remarks  upon  the  subject,  and  sketching  broadly  the  prin- 
ciples applicable  to  it.  Questions  were  then  proposed  to  the 
students,  who,  in  turn,  whenever  any  difficulty  presented  itself, 
freely  questioned  the  professor.  The  recitation  was  not  at  all 
confined  to  the  text-book ;  but  the  general  principles  laid  down  in 
it  formed  the  theme  of  a  full  and  free  commentary,  in  the  course 
of  which  their  various  modifications  and  exceptions  were  brought 
out,  and  copiously  illustrated  in  every  shade  of  differences.  The 
book  constituted  merely  the  starting-goal,  from  which  wide  ex- 
cursions were  made  into  every  cognate  province  of  the  law,  from 
which  matter  for  elucidation,  ornament,  or  interest  could  be  gath- 
ered. My  father's  untiring  enthusiasm,  his  copious  learning,  and 
his  extraordinary  fluency,  enabled  him  to  carry  out  this  plan  with 
comparative  ease  to  himself. 

In  each  of  the  Annual  Reports  of  the  President,  from  1833-34 
to  1845-46,  appeared  substantially  the  following  announcement: 

• 
The  course  of  instruction  in  the  Law  School  is  as  follows : 

(1)  Lectures  by  the  Dane  Professor  of  Law  on  the  Law  of 
Nature  and  Nations,  and  on  Chancery,  Commercial,  Civil  and 
Constitutional  Law.    Lectures  by  the  Royall  Professor  on  all  the 
branches  of  the  Common  Law. 

(2)  Reviews  and  examinations  of  the  students  in  the  Text 
Books.    These  are  held  twice  a  day,  four  days  in  the  week,  and 
four  times  on  Fridays ;  and  the  time  occupied  with  each  class 
varies  from  one  to  two  hours.    The  course  of  study  embraces  a 
selection  of  the  best  elementary  works  in  each  branch  of  the  law 
and  is  intended  to  be  completed  in  two  years.    The  students  are 
referred  to  a  series  of  leading  cases  in  the  English  and  American 
Reports,  and  to  a  parallel  course  of  reading,  in  addition  to  the 
prescribed  course  of  study. 

(3)  Moot  Courts,  for  the  arguing  of  questions  of  law.    These 
are  held  every  week  by  one  of  the  Professors.    Four  of  the  stu- 
dents in  rotation  appear  as  counsel.     They  begin  to  take  their 
turn  at  the  commencement  of  the  second  year  of  their  studies. 
They   have   extempore   disputations   and   debates   on   legal   and 
miscellaneous  questions  as  voluntary  exercises. 

(4)  Written  dissertations  on  subjects  connected  with  the  course 
of  study  are  occasionally  rendered. 

(5)  The  students  are  instructed  in  the  practice  of  the  courts, 
in  the  preparation  of  pleadings,  and  other  legal  instruments ;  and 
an   opportunity   is   afforded    for   attending  the   sittings   of   the 
State  and  United  States  Courts. 

From  1830-31  to  1838-39  inclusive,  the  official  statement  was 


86  HARVARD  LAW  SCHOOL. 

made  that  the  course  was  intended  to  be  completed  in  three  years. 
The  change  was  made  to  two  years,  in  the  Report  of  1839-40. 

The  course  of  text  book  reading,  both  for  the  regular  and 
parallel  courses,  as  set  out  in  the  Catalogues  and  Presidents'  Re- 
ports from  1833  to  1845,  continued  on  the  same  general  lines  as 
from  1830  to  1833  (See  Chapter  XXI  supra).  The  course,  how- 
ever, became  gradually  more  elaborate;  as  new  text  books  were 
published,  they  were  added  or  substituted  for  old  ones — a  full  list 
of  the  changes  being  given  in  the  note  below (i).  The  course  was 
remarkable  for  the  scope  of  reading  outlined.  In  addition  to  the 
routine  subjects  studied,  the  student  was  expected  to  be  familiar 
with  works  of  a  political  and  ethical  nature.  Great  weight  was 


(i)  In  1833-34,  Story  on  Conflict  of  Laws  was  added  to  the  regular 
course,  and  starred,  as  required  for  the  two  year  course.  Angell  and  Ames 
on  Corporations  and  Adamson  on  Ejectment  were  also  starred. 

In  1836-37,  Domat's  Civil  Law  and  Wheaton  on  International  Law  were 
added  to  the  regular  course  and  Hoffman's  Course  of  Legal  Study  was 
placed  in  the  parallel  course. 

Stearns  on  Real  Actions  and  Adamson  on  Ejectments  (being  more  or 
less  out  of  date)  were  no  longer  starred. 

In  1837-38,  Justinian's  Institutes  and  Pandects,  Torillie-rs'  Droit  Civil 
Francois  and  Louisiana  Code  of  Practice  and  Civil  Code  were  added  to  the 
regular  course;  and  Cooper's  Pleadings  put  in  the  parallel  course. 

In  1838-39,  Hoffman's  Legal  Outlines,  Story  on  Equity  Jurisprudence 
(starred),  Pothier's  Commercial  Treatises,  Pothier  on  Obligation  and 
Pothier  on  Contract  of  Sale  were  placed  in  the  Regular  Course.  Lieber's 
Political  and  Ethical  Hermeneutics,  De  Lolme  on  the  English  Constitution, 
Moreau  and  Carleton's  The  Partidas  were  placed  in  the  parallel  course. 

In  1839-40,  Walker's  Introduction,  Niebuhr's  History  of  Rome,  Irving's 
Introduction  to  the  Civil  Law,  Foucher's  Codes,  Hoffman's  Chancery  Prac- 
tice, were  added  to  the  parallel  course ;  Gibbon's  Roman  Empire  was  added 
to  the  regular  course. 

In  1840-41,  Fell  on  Guarantee,  Holfs  Law  of  Shipping,  Collyer  on  Part- 
ership,  Lawes  on  Charter  Parties,  Chance  on  Pozvers,  Sugden  on  Powers, 
Calvert  on  Parties,  Gresley  on  Evidence  in  Equity,  Wigram  on  Wills, 
Wigram  on  Discovery,  Corpus  Juris  Civilis,  Vattel's  Law  of  Nations,  were 
added  to  the  regular  course. 

Story  on  Agency,  Story  on  Partnership,  Greenleaf  on  Evidence,  Starkie 
on  Evidence  were  added  to  regular  course,  and  starred ;  Roscoe  on  Crimi- 
nal Evidence,  Institutes  of  Spanish  Law,  Van  Lecmen's  Commentaries  on 
Dutch  Law.  Loma's  Digest,  Leigh's  Nisi  Prius,  Edwards  on  Receivers, 
Gilbert's  Forum  Romanum,  Grotius  on  the  Lazv  of  War  and  Peace,  Puf- 
fendorf  on  the  Laiv  of  Nations,  Phillips  on  Evidence,  Watson  on  Part- 
nership, were  added  to  the  parallel  course : 

In  1841-42,  Story  on  Bills  of  Exchange  was  added  to  the  regular  course 
and  starred;  and  Roscoe  on  Bills  was  added  to  the  parallel  course. 

In  1844-45,  Pitman  on  Principal  and  Surety,  Stephens'  Nisi  Prius,  Story 
on  Contracts,  Story  on  Promissory  Notes  (starred)  Domat's  Civil  Law, 
Makeldey  du  Droit  Romain,  Pothier's  Commercial  Treatises,  The  Span- 
ish Partidas  were  added  to  the  regular  course.  Crabbe's  History  of  Eng- 
lish Law,  Spences'  Inquiry,  Best  on  Presumptions,  Wilkinson  on  Shipping, 
White's  New  Recopilacion  of  the  Laws  of  Spain  were  added  to  the  parallel 
course. 


CONDITIONS  1833-1845.  87 

attached  to  the  study  of  Constitutional  Law ;  and  Judge  Story's 
predilection  for  Maritime,  Mercantile  and  Foreign  law  is  seen  in 
the  large  number  of  books  of  French,  Spanish  and  Continental 
Law,  added  from  year  to  year,  in  the  regular  and  parallel  courses. 

The  general  methods  of  instruction  can  be  gathered  from  the 
following  extracts  from  the  semi-annual  reports  made  by  Green- 
leaf  to  the  Overseers. 

May  2,  1840,  he  reported  that  study  was  then  in  four  classes. 
Each  Professor  had  charge  of  two  classes,  giving  three  oral 
lectures  or  recitations  of  one  hour  each  to  each  class — six,  every 
week.  Greenleaf  attended  on  Mondays,  Wednesdays  and  Fri- 
days from  9  to  10  A.  M.  and  from  10  to  n ;  and  Story,  on  Tues- 
days, Thursdays  and  Saturdays  from  n  A.  M.  to  12  noon,  and 
from  12  noon  to  I  P.  M. 

'The  books  at  present  studied  with  the  Royall  Professor  are 
Cruise  on  Real  Property  and  Kent's  Commentaries,  to  be  fol- 
lowed by  Chitty  on  Contracts  and  Story  on  Bailments. 

Those  studied  with  the  Dane  Professor  are  Story  on  Equity, 
Abbott  on  Shipping,  to  be  followed  by  Story  on  the  Constitution." 
Oct.  20,  1840,  Greenleaf  reported  that  recitations  and  lectures 
had  been  increased  from  eight  to  twelve,  of  which  each  Professor 
had  six.  In  addition,  "Story  had  two  extra  recitations  on  Story 
on  the  Constitution,  and  Greenleaf  attended  a  class  in  extra  exer- 
cises in  practice  of  drawing  up  pleadings".  The  books  then 
studied  in  regular  course  were  Marshall  on  Insurance,  Story  on 
Equity,  and  Chitty  on  Pleading  and  Practice. 

May  4,  1841,  Greenleaf  reported  that  the  books  then  studied 
were  Story  on  Agency,  Story  on  Equity,  Story  on  the  Constitu- 
tion, under  Story's  tuition,  and  Kent's  Commentaries  and  Cruise 
on  Real  Property  under  Greenleaf ;  and  that  Story,  in  addition  to 
his  two  classes,  had  an  extra  class  on  the  Constitution. 

Oct.  19,  1841,  he  reported  that  each  Professor  was  giving  two 
extra  lectures  a  week,  owing  to  the  great  increase  in  number  of 
students. 

May  3,  1842,  he  reported  that,  on  the  average,  three  extra 
lectures  a  week  were  given  "for  the  sake  of  further  aiding  the 
progress  of  the  students,  which  are  as  well  attended  as  the  regu- 
lar exercises".  He  also  reported  the  introduction  into  the  regular 
course  of  Story  on  Partnership  (in  place  of  Gow's  treatise)  and 
Greenleaf  on  Evidence,  then  just  published  (in  place  of  Starkie's 


88  HARVARD  LAW  SCHOOL. 

treatise).  It  is  to  be  noted  how  large  a  proportion  of  the  text 
books  studied  were  the  work  of  the  two  Professors. 

May  7,  1844,  he  explained  in  his  Report  that :  "When  one  Pro- 
fessor is  absent,  the  other  gives  lectures  in  his  stead  in  his  own 
studies  so  that  there  is  no  loss  of  lectures  by  reason  of  absence. 
The  lectures  thus  omitted  by  the  absent  Professor  are  generally 
made  up  by  him  at  extra  hours  after  his  return." 

Oct.  15,  1844,  he  reported  the  addition,  during  the  present 
term,  of  six  or  eight  more  lectures  by  Story,  owing  to  the  fact 
that  the  Supreme  Court  sessions  were  to  begin  earlier  than  usual 
(in  December  instead  of  January).  In  Story's  absence,  Greenleaf 
was  to  deliver  twelve  lectures  a  week. 

DEGREES. 

The  regulation  as  to  conferring  degrees  remained  until  1834, 
as  it  had  been  under  Professor  Stearns'  regime. 

The  Catalogue  for  1829-30  contained  for  the  first  time  the  Cir- 
cular of  the  School ;  and  the  rule  regulating  degrees,  as  there  set 
down,  was :  "Gentlemen  who  are  graduates  of  a  College  will  com- 
plete their  education  in  three  years.  Those  who  are  not  graduates 
will  complete  it  in  five  years."(i)  This  was  in  conformity  with 
the  rule  of  the  Bar  of  Massachusetts  and  some  other  States, — a 
rule  recognized  by  the  Courts,  which  admitted  to  practice  on  the 
recommendation  of  the  Bar — by  which  graduates  were  required 
to  study  three  years,  and  those  who  were  not  graduates,  five 
years,  before  admission.  And  under  this  Law  School  regulation, 
students  who  commenced  study  in  the  School,  and  pursued  the 
full  course  of  two  years,  did  not  obtain  the  degree  until  they 
had  studied  the  remainder  of  the  term,  either  in  the  School  or 
elsewhere. 


(i)  See  President  Eliot's  Annual  Report  for  1875-76: 
"For  five  years,  this  was  the  avowed  policy  of  the  School ;  but,  in  the 
Catalogue  for  1834-35,  the  sentence  just  quoted  no  longer  appeared;  and 
in  its  stead  the  following  announcement  was  made :  "The  degree  of  Bache- 
lor of  Laws  is  conferred  by  the  University  on  students  who  have  com- 
pleted the  regular  term  of  professional  studies  required  by  the  laws  or 
rules  in  the  State  to  which  they  belong,  eighteen  months  thereof  having 
been  passed  in  the  Law  School  of  this  institution."  From  this  position  the 
School  gradually  declined  by  a  series  of  small  descents,  until,  in  1869-70, 
all  persons  who  had  been  eighteen  months  in  the  School  were  entitled  to 
the  degree  of  Bachelor  of  Laws  without  examination  or  inquiry  of  any 
sort  into  their  attainments.  The  rapid  rise  of  the  School  from  this  humil- 
iating position  during  the  past  seven  years  gives  strong  assurance  that, 
in  due  time,  it  will  return  substantially  to  Judge  Story's  original  policy." 


CONDITIONS  1833-1845.  89 

As  the  Bar  Rules  of  the  various  Counties  in  Massachusetts  re- 
quired that  before  admission  to  the  Bar  the  applicant  should  have 
pursued  his  studies  during  the  preceding  year  in  the  office  of  some 
counsellor  within  the  County,  in  order  to  comply  with  this  rule, 
it  was  the  custom  to  term  study  at  the  Law  School  as  study  in  the 
office  of  the  Professors,  in  their  capacity  as  counsellors.  As  this 
would  require  the  students,  however,  to  apply  for  admission  to 
the  Middlesex  County  Bar,  instead  of  to  the  Suffolk  County 
Bar  where  many  of  them  desired  to  be  admitted,  Judge  Story 
and  Professor  Ashmun,  in  August,  1830,  made  formal  application 
to  the  Suffolk  County  Bar  to  have  the  rule  relaxed,  so  as  to 
allow  admittance  of  Harvard  Law  School  students  to  the  Bar 
of  that  County.  They  pointed  out  that  the  Law  School  was  not 
a  local  institution,  that  it  had  received  the  approbation  and  en- 
couragement of  the  profession,  and  that  the  operation  of  the  rule 
on  students  coming  from  all  over  the  State  was  a  hardship.  ( i ) 


(i)  See  letter  to  the  President  of  the  Bar  of  the  County  of  Suffolk, 
August  1830,  in  possession  of  Charles  P.  Greenough,  Esq. : 

"In  behalf  of  the  Law  School  in  Harvard  University,  we  take  the  liber- 
ty of  addressing  some  remarks  to  you  in  reference  to  rules  regulating  the 
admission  of  Attornies  in  your  County,  with  a  request  that  you  would  lay 
them  before  the  gentlemen  of  the  bar.  The  establishment  of  this  school 
and  the  general  course  pursued  in  it  are  believed  to  have  received  the  ap- 
probation and  encouragement  of  the  profession  at  large ;  and  the  growth 
and  success  of  it  have  been  such  as  to  afford  great  confidence  that  it  will 
become  a  permanent  institution,  sufficiently  important  to  bespeak  your  in- 
terest and  attention. 

The  particular  rule  to  which  we  would  allude  is  the  one  which  requires 
that  every  gentleman  applying  for  admission  to  the  Bar  should  have  pur- 
sued his  studies  during  the  preceding  year  in  the  office  of  a  counsellor 
of  the  Supreme  Judicial  Court  within  the  county  where  the  application  is 
made.  The  students  at  this  school  came  not  only  from  many  different 
states,  but  from  many  different  counties  in  this  state.  Many  of  them 
find  it  convenient  or  think  it  advisable  to  spend  their  last  year  here,  and 
some  will  find  it  impossible  to  spend  any  other. 

It  is  obvious  that  to  such  the  rule  in  question  must  be  the  source  of  fre- 
quent inconvenience  and  embarrassment ;  and  the  purpose  of  this  com- 
munication is  respectfully  to  suggest  for  the  consideration  of  the  bar  the 
expediency  of  such  a  modification  of  the  rule  as  shall  remove  this  incon- 
venience. This  institution  is  not  local :  We  have  hoped  that  it  would  be 
considered,  like  the  University  to  which  it  is  attached,  not  as  pertaining  in 
any  manner  to  the  county  of  Middlesex,  but  as  belonging  to  the  whole 
Commonwealth — as  an  universal  and  common  interest  of  the  profession. 

The  rule  in  question  was  probably  once  in  force  in  every  county.  In 
many  it  continues  to  be  rigidly  adhered  to — but  in  some  it  has  been  par- 
tially diregarded,  and  in  several  it  has  become  entirely  obsolete.  In  its 
true  spirit  and  object  we  presume  it  would  not  apply  to  the  case  of  students 
at  a  public  institution  like  this.  In  its  operation  upon  them  it  becomes  un- 
equal :  Since  those  who  apply  for  admission  in  the  county  of  Middlesex 
have,  from  its  accidental  location,  an  advantage  and  exemption  which  oth- 
ers do  not  enjoy. 

It  may  be  remarked  also,  that  as  a  general  rule,  it  must  be  in  a  great 


90  HARVARD  LAW  SCHOOL. 

The  first  change  in  the  requirements  for  a  degree  from  those 
established  at  the  opening  of  the  School  was  made  by  vote  of  the 
Corporation,  Nov.  29,  1834.  As  the  students  were  coming  more 
and  more  from  States  outside  of  Massachusetts,  and  as  the 
School  was  becoming  increasingly  national  in  character,  it  was 
now  found  that  the  old  requirements  were  much  too  local,  being 
limited  to  rules  as  to  admission  to  the  Bar  prevalent  in  Massachu- 
setts alone.  Accordingly  the  following  vote  was  passed : 

On  the  representation  of  the  Law  Faculty  it  was 
Voted  that  the  6th  Art.  of  the  Regulations  of  the  Law  School, 
which  is  in  the  following  words  viz. : 

"As  an  excitement  to  diligence  and  good  conduct,  a  de- 
gree of  Bachelor  of  Laws  shall  be  instituted  at  the  Uni- 
versity, to  be  conferred  on  such  students  as  shall  have 
remained  at  least  eighteen  months  at  the  University  School 
and  passed  the  residue  of  their  noviciate  in  the  office  of 
some  counsellor  of  the  Supreme  Court  of  the  Common- 
wealth, or  who  shall  have  remained  three  years,  or  if  not 
graduates  of  any  college  five  years,  in  the  School,  provided 
the  Professor  having  charge  of  the  same  shall  continue  to 
be  practitioner  in  the  Supreme  Judicial  Court"  be  repealed 
and  the  following  substituted : 

Art.  6.  As  an  excitement  to  diligence  and  good  conduct,  the 
degree  of  Bachelor  of  Laws  shall  be  conferred  on  all  students 
who  shall  have  studied  at  the  Law  Institution  of  this  University 
for  the  period  of  eighteen  months,  and  shall  receive  a  certificate 
thereof  and  of  their  good  conduct  from  either  of  the  Professors 
of  Law,  and  shall  have  studied  the  residue  of  the  time  necessary 
for  their  admission  to  the  Bar  of  the  State  to  which  they  belong 
or  in  which  they  intend  to  practice. (i) 


measure  ineffectual  and  can  have  no  steady  or  uniform  operation.  By  the 
regulations  of  our  courts  and  the  courtesy  and  practice  of  the  Bar,  gen- 
tlemen admitted  in  any  county  of  the  Commonwealth  become  immediately 
entitled  to  practice  throughout  the  whole,  .and  to  establish  their  residence 
wherever  they  please,  on  equal  footing  with  all  others.  The  only  operation 
of  the  rule,  therefore  will  be  to  compel  applications  to  be  made  in  the 
county  of  Middlesex  instead  of  the  counties  where  gentlemen  respectively 
used  to  reside. 

(i)  The  following  is  a  form  of  the  certificate  to  the  Board  of  Over- 
seers given  under  this  vote,  by  Professor  Greenleaf  August,  1836,  to  qual- 
ify the  men  for  degrees. 

"I  hereby  certify  that  the  following  named  gentlemen  have  completed 
the  regular  term  of  legal  studies  required  by  the  laws  and  rules  of  the 
States  to  which  they  respectively  belong  and  that  18  months  thereof  have 
been  passed  in  the  Law  School  of  this  Institution  whereby  they  are  en- 
titled the  degree  of  Bachelor  of  Laws." 

See  Harv.  Coll.  Papers,  2nd  Series,  Vol.  VIII. 


CONDITIONS  1833-1845.  91 

A  further  slight  change  was  made  by  the  Corporation  Jan.  3, 
1839. 

Voted  that  the  degree  of  Bachelor  of  Laws  will  hereafter  be 
conferred  on  all  students  who  have  completed  the  regular  term 
of  professional  studies  required  by  the  Laws  of  the  State  to  which 
they  belong  or  where  they  intend  to  practice,  and  who  have  passed 
eighteen  months  or  three  terms  at  the  Law  School  of  the  Univer- 
sity, and  shall  be  recommended  therefor  by  the  Law  Faculty. 

This,  however,  still  left  an  inequality.  Of  two  students  who 
had  studied  eighteen  months  in  the  School,  one  could  have  his 
degree  immediately,  because  the  rule  in  his  State  required  no 
longer  term  of  study  for  admission  to  the  Bar:  the  other,  if  a 
graduate,  must  wait  eighteen  months,  and  study  somewhere  dur- 
ing that  term,  because  his  State  required  three  years  for  admis- 
sion ;  if  he  had  not  an  academic  degree,  he  must  wait  and  study 
two  years  longer.  The  impropriety  of  making  the  degree  de- 
pend on  what  transpired  elsewhere,  and  especially  upon  inequali- 
ties arising  under  State  rules  and  regulations,  doubtless  became 
apparent  when  it  was  further  considered. (i) 

Accordingly,  on  July  27,  1839,  the  Corporation  made  a  further 
change,  granting  a  degree  to  all  who  remained  at  the  School 
eighteen  months,  but  reducing  this  period  to  one  year  in  favor  of 
those  students  who  were  admitted  to  the  Bar  before  entering  the 
School. 

Of  this  latter  class,  there  were  large  numbers, — men  who  were 
attracted  by  Judge  Story's  fame. 

/ 

Voted  that  the  existing  rule  in  regard  to  conferring  the  degree 
of  Bachelor  of  Laws  on  the  students  in  the  Law  School  be  modi- 
fied so  as  to  read  as  follows — all  students  who  have  pursued 
their  studies  in  the  Law  School  for  three  terms  or  eighteen  months 
or  who  after  having  been  admitted  to  the  Bar  have  pursued  their 
studies  for  a  year,  shall  upon  the  certificate  and  recommendation 
of  the  Law  Faculty  be  entitled  to  the  degrees  of  Bachelor  of 
Laws. 

"This  discrimination  in  favor  of  gentlemen  who  have  been  ad- 
mitted to  the  Bar",  said  Judge  Joel  Parker  in  his  pamphlet  on  the 
Law  School,  in  1871,  "was  doubtless  intended  to  attract  that  class 
and  induce  them  to  avail  themselves  of  the  benefit  of  the  School. 

With  a  change  which  provided  for  the  allowance  of  six  months 

(i)     See  The  Law  School  of  Harvard  College,  by  Joel  Parker  (1871). 


92  HARVARD  LAW  SCHOOL. 

study  in  another  Law  School  having  power  to  confer  degrees,  as 
a  part  of  the  eighteen  months  required,  this  rule  stood  for  thirty 
years." 

A  slight  change  was  made  by  vote  of  the  Corporation,  March 
23,  1843: 

Voted  that  all  students  who  shall  pursue  their  studies  in  the 
Law  School  for  three  terms  or  eighteen  months,  or  who,  having 
been  admitted  to  the  Bar  after  having  studied  law  at  least  one 
year  in  the  office  of  a  counsellor  at  law  shall  afterwards  pursue 
their  studies  in  the  Law  School  for  one  year,  shall  be  entitled, 
upon  the  certificate  and  recommendation  of  the  Law  Faculty,  to 
the  degree  of  Bachelor  of  Laws. 

GROWTH  OF  THE  SCHOOL. 

The  increase  in  the  work  of  the  Professors  from  1829  to  1845 
can  be  best  understood  from  the  following  table  showing  the 
growth  of  the  School. 

The  first  column  gives  the  number  of  students  as  stated  in  the 
College  Catalogue;  the  second  column  gives  the  number  of  "law 
students  resident  at  the  University  during  the  year",  as  stated  in 
the  President's  Annual  Reports;  the  third  gives  the  number  of 
students  as  reported  by  the  Law  Faculty  in  the  President's  An- 
nual Report,  the  number  varying  at  different  times  of  the  year ; 
the  fourth  column  gives  the  "whole  number  who  have  been  in 
the  School  during  the  year"  as  reported  by  the  Law  Faculty. 

1829-30  24  31 

1830-31  31  41 

1831-32  41  42 

1832-33  38  42 

1833-34  51  51  32-53 

1834-35  32  32  30-52 

1835-36  52  54  40-54 

1836-37  50  50  45-67 

1837-38  63  63  55-70 

1 838-39  78  82  82-87                    151 

1839-40  87*  85  76-99                   1 66 

1840-41  96*  99  95-126                 213 

1841-42  99  115  120-126                 213 

1842-43  107*  118  126-132                  180 

1843-44  127*  117  115-128                  180 

1844-45  156*  153  150                        223 

In  the  starred  years,  the  College  Catalogue  was  issued  in  sev- 


CONDITIONS  1833-1845.  93 

eral  editions ;  and  in  such  cases  the  figures  of  the  last  edition  are 
used.  ( i ) 

Especial  notice  should  be  taken  of  the  fact  that  the  whole 
number  of  students  in  the  School  during  each  year  was  far 
greater  than  the  number  reported  at  any  given  date,  as  the 
fourth  column  of  the  table  clearly  shows.  In  considering  the 
wide  influence  of  the  School,  this  fact  must  be  constantly  borne 
in  mind.  (2) 

FINANCES. 

Such  an  increase  in  the  number  of  students  placed  the  School 
financially  in  a  most  prosperous  condition.  The  deficit  owed  to 
the  College  funds,  which  on  Aug.  31,  1830,  was  $2,152.44,  and 
which  owing  to  the  building  of  Dane  Law  College  was  $3,739.83 
on  Aug.  31,  1835,  was  reduced  to  $859.65  in  1838;  and  the  next 
year,  1839,  the  Law  School  Account  showed  a  balance  to  its 
credit  of  $801.34.  In  1844,  the  balance  had  grown  to  the  hand- 
some amount  of  $23,416.19 — the  largest  balance  to  its  credit  until 
1895.  In  1845,  after  the  expenses  of  enlarging  Dane  Hall  ($12,- 
707.22)  had  been  paid,  the  balance  was  $15,453.98. 


(1)  See  article  on  Harvard   College  Annual  Catalogues,  by  John   L. 
Sibley,  in  Mass.  Hist.  Soc.  Proc.,  Vol.  VIII  (1865),  in  which  a  full  list  of 
the  Catalogues  and  totals  of  undergraduates  and  professional  students  re- 
corded in  each  Catalogue  and  in  each  edition  is  given. 

(2)  It  is  to  be  noted  that  the  above  figures  do  not  exactly  tally  with 
the  figures  as  presented  in  the  preceding  Chapters,  and  as  given  below, 
from    Professor    Ashmun's    and    Professor    Greenleaf's    semi-annual    Re- 
ports to  the  Overseers.    The  difference  is  to  be  accounted  for  by  the  vary- 
ing dates  on  which  the  statistics  made  up.     (See  Reports  in  Harv.  Coll. 
Archives.} 

May,  1836,  number  of  students  44,  of  whom  42  are  present. 
Oct.  17,  1836 — 50. 

May  20,   1837 — 42    (number  last  term  32  that  being  about  the  average 
No.  during  the  winter  term). 
Oct.  1 6,   1837 — 64  of  whom  62  are  present. 
May  i,  1838,  number  of  students  55  of  whom  =52  are  present. 
Oct.  10,   1838—78. 
May  7,  1839—67. 
May  2,  1840 — 72. 
Oct.  20,  1840 — 99. 
May  4,  1841—95. 

Oct.  19,  1841 — 117  of  whom  115  are  present. 
May  31,  1842 — 87. 
Oct.  18.  1842—118. 
May  2,   1843—105- 
Oct.  17,  1843—128. 
May  7,  1844 — 120. 
Oct.  15,  1844—156. 
Oct.  21,   1845 — 146- 


94  HARVARD  LAW  SCHOOL. 

The  tables  of  receipts  from  term  bills,  and  the  yearly  balances 
are  as  follows,  as  they  appeared  on  the  Treasurer's  Account  on 
Aug.  31,  of  each  year. 

Term  Bills.  Balance.                       Deficit. 
Aug.  31,  1834 

(for  year 

J833-34)  $4,604                      $2,776.82 

1835  3,176  3,739-83 

1836  4,548  3,312.29 

1837  4,309  2,676.75 

1838  5,59i-52  859.65 

1839  6,907.65  $801.34 

1840  7,287.60  3,063.97 

1841  9,350  6,957.31 

1842  9,740  11,145-81 

1843  10,500         16,521.08 

1844  11,902.50       23,416.19 

1845  ! 


During  the  years  1829-1845  the  income  from  the  Royall  Pro- 
fessorship was  $397.18;  the  income  from  the  Dane  Professorship 
was  $500  from  1829  to  1836,  and  after  1836,  $750. 

The  Dane  Professor  was  paid  $1000  per  year.  The  Royall 
Professor  was  paid  $1500  per  year,  and  from  1833  to  1837  a 
yearly  sum  of  $500  in  addition,  and  from  1837  to  1845  a  yearly 
additional  sum  of  $1000. 

Payments  to  Instructors  were  also  made  as  follows  —  to  Pro- 
fessor Pollen  for  his  lectures  on  Civil  Law  in  1833-34,  $200:  to 
Charles  Sumner,  in  1833-34,  $275  as  Instructor,  and  for  prepar- 
ing the  Law  Library  Catalogue  $160  ;  in  1834-35,  $225  as  Instruc- 
tor, and  $30  for  the  Catalogue;  in  1835-36,  $225  as  Instructor; 
in  1836-37,  $150  as  Instructor;  in  1840-41  $40  as  Instructor;  and 
in  1842-43,  $600  as  Instructor. 

The  endowment  of  the  School  was  still  scanty,  being  confined 
to  the  Dane  and  Royall  Professorship  Funds  amounting,  Aug. 
31,  1845,  to  $22,943.63. 


CHAPTER  XXX. 
THE  TRANSITION  PERIOD.   1845-1850. 

At  this  stage  in  the  Law  School  history,  midway  between  its 
foundation  and  the  beginning  of  the  Langdell  Regime,  it  may 
be  of  interest  to  pause  and  recall  a  few  contemporaneous  events. 

In  1845,  James  K.  Polk  was  President  and  Roger  B.  Taney, 
Chief  Justice  of  the  United  States ;  George  N.  Briggs  was  Gov- 
ernor, Daniel  Webster  and  John  Davis  were  United  States  Sen- 
ators, and  Lemuel  Shaw  was  Chief  Justice,  of  Massachusetts ; 
Green  C.  Bronson  was  Chief  Justice,  and  Reuben  C.  Walworth, 
Chancellor,  of  New  York;  John  Bannister  Gibson  was  Chief 
Justice  of  Pennsylvania.  Thomas  Denman  was  Lord  Chief  Jus- 
tice, and  John  Singleton  Copley  (Lord  Lyndhurst)  Lord  Chan- 
cellor, of  England. 

Samuel  W.  Morse  had  just  completed  his  successful  experi- 
ments with  the  electro-magnetic  telegraph ;  and  ocean  navigation 
by  steam  had  been  in  existence  seven  years,  since  the  arrival  at 
New  York  from  England,  April  23,  1838,  of  the  Great  Western. 

In  1840,  penny  postage  and  postage  stamps  had  been  introduced 
into  England ;  in  the  same  year,  daguerrotypes  were  first  taken, 
and  Adams'  Express  was  first  established  in  Boston.  In  1842,  the 
railroad  between  Boston  and  Albany  was  completed — the  first 
important  through  route  in  the  country. 

In  1845,  postage  rates  in  the  United  States  were  5  and  10  cents 
according  to  distance,  and  two  years  later,  postage  stamps  were 
introduced.  Longfellow's  Psalm  of  Life  had  been  published  in 
1838;  Emerson's  Essays  (first  series)  in  1841;  Hawthorne's 
Twice  Told  Tales  in  1842;  Prescott's  Conquest  of  Mexico  in 
1843;  Lowell's  The  Crisis  in  1844;  Poe's  Raven  in  1845. 

The  Law  School  opened  in  the  fall  of  1845  w^h  I26  students, 
increased  during  the  autumn  to  153,  coming  from  24  States.  In 
the  spring  term  of  1846  there  were  132  students  from  25  States 
("u  North  of  the  Potomac,  9  South,  and  5  \Vest  of  the  Alle- 
ghenies"). 

Judge  Story's  death  was  a  terrible  blow  to  Greenleaf  and  to  the 
students,  a  loss,  which,  as  Greenleaf  wrote  to  Sumner,  Sept.  26, 


96  HARVARD  LAW  SCHOOL. 

1845,  "affects  me  every  day  with  deeper  and  deeper  in- 
tensity of  feeling.  Nothing  can  exceed  the  loneliness  of  my  situ- 
ation in  Dane  Hall,  notwithstanding  the  students  cluster  round 
me  with  affection  and  the  studies  all  go  on  as  far  as  I  can  supply 
his  place  on  his  lecture  days — sed  quanta  intervallo."  (1} 

Greenleaf,  however,  attempted  to  carry  through  the  regular 
routine  of  the  School  unchanged,  writing(2)  : 

I  am  obliged  to  be  in  town  tomorrow  at  10.15  A.  M.  at  the 
latest.  I  wish  therefore  that  if  possible  you  would  be  here  in 
the  9  o'clock  bus  that  I  may  announce  you  before  I  leave. 

Let  me  now  say,  lest  I  should  not  see  you,  that  both  Judge 
Shaw  and  myself  think  it  highly  expedient  to  observe  the  old 
hours  9  and  10  A.  M.  for  recitations,  as  so  many  other  things 
have  adjusted  themselves  to  those  hours.  I  think  moreover  that 
we  shall  do  wisely,  if  we  take  care  not  to  multiply  the  tokens  of 
our  loss  of  the  Judge's  presence.  The  fewer  changes,  the  less 
like  likely  is  an  uneasy  sensation  to  arise  in  the  School. 

The  labor  of  giving  two  lectures  daily  except  Saturday,  hold- 
ing one  Moot  Court  on  Monday  afternoons  and  another  on 
alternate  Thursdays  "in  order  to  employ  all  the  members  of  the 
Senior  and  Middle  classes  on  the  Moot  Court  at  least  once  dur- 
ing each  term,"  proved  too  heavy  a  burden  for  one  Professor 
alone. 

Accordingly,  Charles  Sumner  was  again  called  in  to  assist 
Greenleaf;  and  on  February  28,  1846,  John  C.  Adams,  a  student 
in  the  School  1841-44,  a  young  man  of  brilliant  promise,  was 
appointed  Instructor,  his  services  during  the  remainder  of  the 
academic  year  and  part  of  the  next  year,  proving  as  Green- 
leaf  reported,  "highly  useful  and  acceptable." 

That  Greenleaf's  redoubled  efforts  were  appreciated  by  his 
pupils  is  shown  by  the  following  notice  appearing  in  the  Law 
Reporter  for  February,  1846,  (Vol.  VIII.)  : 

At  a  late  meeting  of  the  members  of  the  Law  School  at  Cam- 
bridge resolutions  highly  complimentary  to  Prof.  Greenleaf  for 
the  manner  in  which  he  has  performed  the  whole  duties  of  in- 
struction since  the  death  of  Judge  Story,  were  unanimously 
adopted. 


(1)  Unpublished  letter  in  Sumner  Papers  in  Harvard  College  Library. 

(2)  See  unpublished  letter  February  28,  1846,  Greenleaf  to  Sumner — 
Sumner  Papers  in  Harvard  Coll.  Library. 


TRANSITION  PERIOD.  97 

Jan.  26,  1846,  Edward  Everett  was  chosen  President  of  the 
University,  succeeding  Quincy ;  and  Benjamin  R.  Curtis  took 
Story's  place  on  the  Corporation.  President  Everett  was  in- 
augurated April  30,  i846.(i) 

The  following  graphic  picture  of  the  occasion  is  given  by 
George  F.  Hoar,  then  a  junior  in  College(2)  : 

By  a  simple  but  impressive  inaugural  ceremony,  Governor 
Briggs  had  just  invested  Mr.  Everett  with  his  office  and  deliv- 
ered to  him  the  keys  and  the  charter. 

Everett  was  stepping  forward  to  deliver  his  inaugural  address, 
when  Webster,  who  had  come  out  from  Boston  a  little  late, 
came  in  upon  the  stage  by  a  side  door.  President  and  orator  and 
occasion  were  all  forgotten.  The  whole  assembly  rose  to  greet 
him.  It  seemed  as  if  the  cheering  and  clapping  of  hands  and  the 
waving  of  handkerchiefs  would  never  leave  off.  The  tears 
gushed  down  the  cheeks  of  women  and  young  men  and  old — 
everything  was  forgotten  but  the  one  magnificent  personality. 
When  the  din  had  subdued  somewhat,  Mr.  Everett  with  his 
never  failing  readiness  and  grace  said  "I  would  I  might  anticipate 
a  little  of  the  function  of  my  office  and  saying,  Expectatio  oratio 
in  I'crnacula — call  upon  my  illustrious  friend  who  has  just  entered 
upon  the  stage,  to  speak  for  me.  But  I  suppose  that  the  propri- 
eties of  the  occasion  require  that  I  speak  for  myself." 

Meanwhile,  the  Corporation  had  been  busily  engaged  in  trying 
to  fill  the  Dane  Professorship;  for,  as  the  Law  Reporter  said 
editorially,  it  was  an  easy  matter  to  find  a  successor  for  Story 
as  Supreme  Court  Judge,  but  difficult  to  replace  him  as  Pro- 
fessor. 


(1)  See  Records  of  the  Board  of  Overseers  giving  the  following  ac- 
count of  the  Inauguration : 

"The  President  Elect,  with  the  Corporation  and  Overseers  and  in- 
vited guests,  assembled  in  Gore  Library,  at  X  in  the  morning  to  await 
the  procession  at  XI.  At  XI  the  procession  moved  from  Gore  Library 
to  the  First  Church.  The  exercises  commenced  with  a  Voluntary  on  the 
organ.  Rev.  Dr.  Walker  of  the  Corporation  then  offered  an  appropriate 
prayer.  Gov.  Briggs  next  invested  the  President  elect  with  the  badge  of 
office,  the  parchment  charter  of  the  College,  the  keys,  etc.,  in  an  Eng- 
lish speech. 

The  President  made  a  short  reply  in  English.  A  fine  Latin  oration  was 
pronounced  by  George  Martin  Lane,  Senior  Sophister  of  the  University. 

A  Hymn  555  of  Greenwood  was  sung  by  the  choir.  The  President 
delivered  an  English  address  of  i  hour  and  20  minutes.  Dr.  Francis 
closed  with  a  well  adapted  prayer.  The  Doxology  was  sung  by  the 
whole  assembly. 

Dinner  was  then  served  in  Harvard  Hall,  for  the  first  time  since  the 
foundation  of  the  college  without  wine.  The  same  abstemiousness  was 
shown  by  the  President  at  his  well  attended  levee  in  the  evening." 

(2)  Autobiography  of  Seventy  Years,  by  George  F.  Hoar. 
7 


98  HARVARD  LAW  SCHOOL. 

It  Would  perhaps  have  been  natural  to  turn  to  the  man  whom 
Story  himself  had  frequently  designated  as  his  fittest  successor 
— his  young  friend  Charles  Sumner.  But  Sumner  had  just 
delivered  his  famous  Fourth  of  July  oration  on  The  True 
Grandeur  of  Nations;  and  the  radical  nature  of  his  views  on 
slavery  and  other  social  and  political  questions  was  beginning  to 
alienate  him  from  his  old  and  influential  friends  and  from  the 
men  who  reigned  supreme  in  College  circles. 

He  had  also  largely  given  up  law  practice  as  his  literary  and 
political  interests  absorbed  more  and  more  of  his  time  and  atten- 
tion. He  undoubtedly,  however,  expected  to  receive  an  offer  of 
the  Professorship;  for  as  early  as  seven  years  before,  he  had 
written  to  Greenleaf,  Nov.  2,  1838:  "You  have  thrown  out  some 
hints  with  regard  to  my  occupying  a  place  with  you  and  the  judge 
at  Cambridge.  You  know  well  that  my  heart  yearns  fondly  to 
that  place  and  that  in  the  calm  study  of  my  profession  I  have 
ever  taken  more  delight  than  in  the  best  debate  at  the  bar" ;  and 
the  failure  of  the  Corporation  at  the  present  time  to  even  con- 
sider his  name  was  therefore  a  sore  disappointment  to  him.(i) 

Greenleaf,  however,  had  informed  the  Corporation  early  in 
October,  1845,  that  ms  choice  was  William  Kent,  son  of  ex- 
Chancellor  Kent,  a  Judge  of  the  Supreme  Court  of  New  York, 
and,  since  1838,  Professor  of  the  Law  .of  Persons  and  Personal 
Property  in  the  Law  School  of  the  University  of  the  City  of 
New  York. (2) 


(1)  Edward  L.  Pierce  in  his  Memoirs  and  Letters  of  Charles  Sumner, 
gives  a  contrary  impression,  but  he  is  certainly  wrong: 

"There  is  some  evidence  that  he  was  not  indifferent  to  the  canvass  of 
names  for  the  professorship,  and  was  disturbed  to  find  himself  less  re- 
garded than  formerly  in  the  college,  but  none  that  he  was  inclined  to 
detach  himself  from  the  new  interests  and  activities  into  which  he  was 
passing.  He  wrote  to  his  brother  George,  Sept.  30,  1845 : 

'I  doubt  if  the  place  will  be  offered  to  me.  I  have  so  many  idiosyncras- 
ies of  opinion  that  I  shall  be  distrusted.  I  am  too  much  of  a  reformer 
in  law  to  be  trusted  in  a  post  of  such  commanding  influence  as  this  has 
now  become.  But  beyond  all  this,  I  have  doubts  whether  I  should  ac- 
cept it  even  if  it  were  offered  to  me.  I  feel  that  I  can  only  act  as  I  could 
wish  in  a  private  station.  In  office  my  opinions  will  be  restrained,  and 
I  shall  be  no  longer  a  free  man.' 

He  cordially  welcomed  to  the  place,  which  remained  vacant  for  nearly 
a  year,  Judge  William  Kent,  'a  sterling  character,'  as  Sumner  described 
him,  son  of  the  Chancellor,  and  always  maintained  with  him  a  most 
friendly  intercourse  and  correspondence." 

(2)  In  an  article  on  Chancellor  Kent's  Both  Birthday  in  1843,  the  Law 
Reporter  (Vol.  VI)   said: 

"He  sees  by  his  side  a  son  the  proper  heir  of  his  fame,  as  of  his  name, 
already  occupied  in  the  same  high  duties  which  have  filled  the  father's 


William  Kent 


TRANSITION  PERIOD.  99 

Kent's  character  and  abilities  had  been  recognized  not  only  by 
Greenleaf  but  by  Story  himself,  who  had  indicated  him  as  a 
fit  choice  for  the  United  States  Supreme  Bench,  in  a  letter  to 
James  Kent,  April  25,  1844(1)  : 

O !  that  I  had  your  excellent  son  as  my  colleague  on  the  bench ; 
then  should  I  feel  ready  to  depart  in  peace.  I  have  even  thought 
that  he  and  Mr.  Lord  (Daniel  Lord  of  New  York,  born  in 
1795)  were  the  only  candidates  that  as  to  age,  character  and 
qualifications,  a  President  ought  to  select  for  the  office.  But 
what  can  we  hope  from  such  a  head  of  an  administration  as  we 
now  have,  but  a  total  disregard  of  all  elevated  principles  and  ob- 
jects. I  dare  not  trust  my  pen  to  speak  of  him  as  I  think.  Do 
you  know  (for  I  was  so  informed  at  Washington)  that  Tyler 
said  he  never  would  appoint  a  judge  "of  the  school  of  Kent?" 

Poor  Baldwin  is  gone,  (April  21,  1844)  another  vacancy  on 
the  bench !  How  nobly  it  might  be  filled !  But  we  are  doomed 
to  disappointment. 

Kent,  however,  wrote  to  Greenleaf,  October  30,  1845,  declin- 
ing the  suggestion,  on  the  score  of  ill  health  and  disinclination 
to  leave  his  aged  father.  Nevertheless,  in  the  winter,  the  Cor- 
poration, after  considering  several  other  candidates,  among  them 
Henry  Wheaton,(2)  again  turned  to  Kent,  being  largely  influ- 
enced by  Benjamin  R.  Curtis,  his  friend  and  contemporary (3)  : 
and  on  February  25,  1846,  Chief  Justice  Shaw  and  Charles  G. 
Loring,  tendered  him  the  appointment  in  a  letter  concluding : 

It  is  perhaps  unnecessary  for  us  to  press  upon  your  considera- 
tion, the  various  views,  both  of  a  personal  and  public  nature, 
which  the  question  of  the  acceptance  of  such  an  office,  the  labors 
and  studies  attending  it,  the  associations  which  would  be  formed 
by  a  residence  at  Cambridge,  and  a  connection  with  the  Uni- 

life,  and  we  may  say  almost  without  exaggeration,  'melior  patre',  distin- 
guished judge.  We  refer  to  the  Hon.  William  Kent  whose  professional 
learning,  various  attainments,  amiable  character  and  elevated  nature,  are 
an  ornament  to  the  bar  of  our  country." 

(1)  See  Mass.  Hist.  Soc.  Proc.,  2nd  Series,  Vol.  XVI   (1902). 

(2)  Wheaton's  age,  (60),  was  considered  an  objection;  see  letter  of  S. 
A.    Eliot   to    E.    Everett,   Jan.   31,    1846.     Letters   to   President — Harvard 
Coll.  Archives. 

(3)  See  Life  and  Writings  of  B.  R.  Curtis,  by  B.  R.  Curtis,  Jr.,  Vol. 
I.     Curtis    wrote     to     George     Ticknor     June     6,    1846: 

"I  am  sure  you  will  be  glad  to  learn  that  we  have  strong  assurances 
both  from  Judge  William  Kent  and  his  father  that  the  former  will  ac- 
cept the  vacant  Law  Professorship.  He  has  not  actually  accepted  it,  be- 
cause he  awaits  his  father's  consent,  to  be  sought  after  his  return  and 
conference  with  the  Chancellor ;  but  the  latter  has,  in  a  letter  to  the 
Chief  Justice  (Shaw)  substantially  given  his  approval." 


ioo  HARVARD  LAW  SCHOOL. 

versity,  the  sphere  of  influence,  of  useful  and  extensive  influence, 
which  the  office  affords,  are  all  considerations,  which,  with  many 
others,  will  readily  present  themselves  to  your  mind,  and  we 
have  no  doubt,  will  be  weighed  with  due  deliberation.  We  there- 
fore forbear  entering  into  details  on  the  subject  and  will  only  add 
that  we  regard  the  office  as  one,  in  which  great  good  can  be  done, 
not  only  to  our  own  neighborhood  and  state,  but  to  the  wider 
circle  of  the  whole  Union.(i) 

Greenleaf  wrote  to  Kent,  March  28,  1846: 

Upon  the  receipt  of  your  letter  of  Oct.  30,  I  quite  gave  up  all 
hope  of  seeing  you  in  a  professor's  chair  here ;  especially  as  the 
Corporation  had  already  begun  to  look  in  another  direction.  But 
finding  the  way  again  open,  I  gathered  new  hope,  and  ventured 
to  submit  your  letter  to  Ch.  Just.  Shaw,  of  the  Corporation ;  and 
I  think  it  not  improbable  that,  ere  this  arrives,  you  will  have 
received  at  least  a  semi-official  communication  on  the  subject. 
Having  urged  this  matter  upon  you,  partly  on  grounds  personal 
to  myself,  I  ought  now  to  mention  that  from  recent  indications 
I  think  it  not  impossible  that  the  department  may  be  so  re- 


(i)  See  letter  in  possession  of  William  Kent,  Esq.,  of  Tuxedo  Park, 
N.  Y.: 

"The  undersigned,  Members  of  the  Corporation  of  Harvard  College, 
in  behalf  of  ourselves  and  of  all  the  other  members  of  that  body,  ask 
leave  to  address  you,  informally  respecting  the  Professorship  of  Law,  in 
that  Institution,  left  vacant,  by  the  lamented  death  of  Mr.  Justice  Story. 
In  filling  an  office  so  intimately  connected  with  the  honor  and  prosperity 
of  the  legal  profession,  and  with  the  best  interests  of  the  whole  com- 
munity, we  have  regarded  it  as  a  much  more  important  object,  to  obtain 
a  person  highly  qualified  for  the  office,  than  to  make  a  speedy  appoint- 
ment. One  impediment  to  an  earlier  action  on  the  subject  has  been,  that 
when  this  vacancy  occurred,  a  vacancy  existed  at  the  same  time,  in  the 
Presidency  of  the  College.  This  has  been  recently  filled,  and  we  hope 
and  trust  happily  filled,  by  the  appointment  and  acceptance  of  Hon.  Ed- 
ward Everett,  who  will  in  a  few  days,  enter  on  the  duties  of  that  office. 
There  was  also  another  vacancy  in  our  own  Board,  the  full  number  of 
which,  is  seven  only,  occasioned  by  the  decease  of  Judge  Story,  who 
was  a  member  of  the  Corporation  as  well,  as  Professor  of  Law.  This 
vacancy  too  has  been  lately  filled. 

At  a  recent  meeting  of  the  whole  Board,  after  fine  consideration,  it  was 
unanimously  concluded  to  invite  your  acceptance  of  the  vacant  Profes- 
sorship, with  an  observance,  that  on  signifying  your  assent  to  the  ap- 
pointment, we  shall  be  happy  to  confirm  this  informal  invitation,  by  a 
formal  election. 

The  undersigned  were  requested  to  communicate  this  invitation  to  you, 
and  we  have  been  desirous  of  doing  it  if  possible,  so  that  it  shall  reach 
you  before  you  leave  Europe,  in  order  that  you  may  have  it  under  con- 
sideration, before  fixing  upon  any  plan  for  your  future  course  on  your 
return.  Provision  has  been  made,  for  an  assistant  teacher,  to  aid  Pro- 
fessor Greenleaf  in  the  duties  of  the  Law  School  during  the  next  academ- 
ical term,  of  twenty  weeks;  thus,  it  is  desirable,  with  a  view  to  a  more 
permanent  establishment,  to  have  an  answer  from  you,  as  soon  as  your 
convenience  will  permit." 


TRANSITION  PERIOD.  101 

modeled  as  to  determine  me  not  to  remain  in  it,  but  to  seek  em- 
ployment in  some  other  field ;  but  yet  not  so  changed  as  to  render 
it  less  eligible  for  yourself,  or  any  other  gentleman.  Should  that 
be  the  case,  I  should  feel  guilty  of  deserting  you,  but  for  this 
intimation.  But  should  I  remain,  nothing  would  gratify  me 
more  than  to  be  associated  with  you. 

To  the  letter  from  the  Corporation,  Kent,  who  had  then  re- 
signed his  judgeship  and  gone  to  Paris  for  his  health,  replied, 
May  13,  1846: 

Nothing  can  be  more  flattering  than  the  offer  contained  in  your 
letter,  nothing  more  deeply  grateful  to  my  feelings.  It  has  almost 
irresistible  attractions.  The  duties  of  a  Law  Professorship  are 
congenial  with  my  tastes.  I  have  a  warm  friendship  for  the  gen- 
tleman with  whom  I  shall  probably  be  associated  and  I  admire 
and  honor  the  Institution  from  whose  government  the  offer  pro- 
ceeds. 

He  felt,  however,  that  he  could  not  accept  the  position  until 
he  had  first  consulted  with  his  father,  whose  advanced  age, 
(83,)  demanded  that  his  needs  and  desires  should  be  supreme. 
Finally,  however,  he  accepted  the  position.  ( I ) 

The  Dane  Professorship  being  regarded  as  the  higher  honor, 
the  Corporation  determined  to  confer  it  upon  Greenleaf,  to  make 
the  Senior  Professor  the  Head  of  the  Department,  and  to  place 
the  Dane  and  Royall  Professors  jointly  in  charge  of  the  students, 
the  Royall  Professor  alone  having  hitherto  had  this  duty.  Ac- 
cordingly, a  vote  so  amending  the  statutes  of  the  Royall  Pro- 
fessorship was  passed  on  August  I,  1846.  Greenleaf  was  form- 
ally chosen  Dane  Professor,  and  Kent,  Royall  Professor.  Owing 
to  the  large  increase  in  the  number  of  students,  the  salary  of 
each  of  the  two  Professors  was  increased  to  $3,000. (2) 


(1)  President   Everett   wrote   Kent  Aug.   3,    1846,   "I    anticipate    from 
your    connection    with    it    a    great    increase    of    prosperity    to    our    Law 
School  and  an  addition  not  less  welcome  to  us  as  individuals  as  to  the 
good  neighborhood  of  our   domestic  circle" — Harv.   Coll.   Archives,  Let- 
ters of  the  President. 

(2)  See  vote  of  Corporation,  August  i,  1846: 

"The  Committee  to  whom  it  was  referred  to  take  into  consideration 
the  Rules,  Regulations  and  Statutes  of  the  Law  School  having  attended 
to  the  subject  and  ask  leave  to  report  in  part  as  hereafter  stated  and  to 
sit  again  on  the  remainder  of  the  subject. 

The  Committee  respectfully  recommend  that  the  votes  passed  at  a 
meeting  of  August  20,  1829,  as  a  modification  of  the  statutes  of  the  Royall 
Professorship  numbered  3,  directing  that  the  Dane  Professor  be  con- 
sidered for  the  present  and  until  further  order  of  the  government,  as 


102  HARVARD  LAW  SCHOOL. 

WILLIAM   KENT. 

William  Kent,  the  new  Professor,  was  born  in  Albany,  Octo- 
ber 2,  1802.  Graduating  at  Union  College,  he  was  placed  by  his 
his  father  at  Kinder  hook,  under  the  instruction  of  Peter  Van 
Schaack.  After  two  years,  he  entered  the  office  of  Judge  Foot, 
at  Albany.  In  1823,  when  his  father  was  retired  as  Chancellor 
and  removed  to  New  York,  he  entered  the  office  of  J.  Ogden 
Hoffman.  In  1828,  he  became  a  partner  with  his  former  in- 
structor, Judge  Foot,  occupying  offices  with  his  father.  That 
year,  on  the  failure  of  the  Franklin  Bank,  Chancellor  Reuben  H. 

the  head  of  the  Law  Department  inthe  University,  be  rescinded ;  and  in 
lieu  thereof,  it  be  declared  and  enacted,  that  the  Senior  Professor  of 
Law,  for  the  time  being,  be  considered  the  Head  of  the  Department  in 
the  University ;  also  that  part  of  the  same  article  which  provides  that 
the  Royall  Professor  shall  have  the  immediate  charge  and  oversight  of 
the  students,  be  rescinded ;  and  in  lieu  thereof,  it  be  declared  and  en- 
acted, that  the  Dane  Professor  of  Law  and  the  Royall  Professor  of  Law 
shall  equally  and  jointly  have  the  charge  and  oversight  of  the  students;  so 
that  clause  of  said  article  when  amended  shall  stand  as  follows — 

The  Senior  Professor  of  Law  for  the  time  being  is  considered  as 
the  Head  of  the  Department  of  the  University.  It  shall  be  the  duty  of 
the  Dane  professor  and  the  Royall  professor  to  devise  and  propose  from 
time  to  time  to  the  Corporation  such  a  course  of  instruction  in  the  Law 
School  as  may  best  promote  the  design  of  that  institution  and  the  inter- 
est and  honor  of  the  University,  and  to  do  all  in  their  power  to  promote 
those  objects.  They  shall  equally  and  jointly  have  the  charge  and  over- 
sight of  the  students,  meeting  them  frequently  at  stated  periods,  to  ascer- 
tain their  progress,  to  assist  in  and  stimulate  their  studies,  and  to  explain 
and  remove  such  doubts  and  embarrassments  as  may  occur  in  the  course 
of  their  reading. 

Voted  to  accept  this  report  and  adopt  the  vote. 

Whereas  the  number  of  students  at  the  Law  School  has  become  so 
large  as  to  require  the  constant  attendance  and  services  of  both  of  the 
Professors  and  whereas  the  revenue  from  tuition  fees  has  increased  in  the 
same  proportion 

Voted  that  there  be  allowed  and  paid  out  of  the  funds  of  the  Law 
School  arising  from  fees  of  tuition,  to  the  Dane  Professor  a  sum  which 
added  to  the  net  annual  proceeds  of  the  fund  specially  applicable  to  the 
support  of  the  Dane  Professorship  shall  amount  to  the  sum  of  $3000  per 
annum,  payable  quarterly. 

That  there  be  allowed  and  paid  to  the  Royall  Professor  of  Law,  a 
sum  which  added  to  the  net  annual  proceeds  of  the  fund  specially  applic- 
able to  the  support  of  the  Royall  Professorship  shall  amount  to  the  sum 
of  $3000  per  annum,  payable  quarterly." 

These  votes  were  concurred  in  by  the  Overseers  February  4,    1847. 

Greenleaf  accepted  the  Dane  Professorship,  Aug.  5,  1846,  in  the  fol- 
lowing letter : 

"For  this  distinguished  honor  in  the  special  circumstances  under  which 
it  is  conferred,  I  beg  leave  to  express  my  most  grateful  thanks  to  the  Cor- 
poration. I  accept  the  office ;  and  shall  enter  upon  the  discharge  of  its 
duties  with  alacrity  and  vigor,  cheered  by  this  renewed  proof  of  their  con- 
fidence, and  feeling  bound  by  an  additional  obligation  to  seek  the  pros- 
perity of  the  Department  confided  to  me  and  of  the  University  whose 
honors  I  am  permitted  to  wear." 


TRANSITION  PERIOD.  103 

Walworth  appointed  ex-Chancellor  Kent  receiver;  and  this  at 
once  gave  the  firm  of  Foot  and  Kent  a  large  lucrative  business. 
In  1830,  he  formed  a  firm  with  William  S.  Johnson.  He  was 
not  a  jury  lawyer,  declining  cases  of  that  description,  owing  to 
a  distaste  for  the  rough  methods  of  jury  trials.  His  gentle 
manner,  his  delicate,  discerning  nature,  with  a  calm,  suave  tem- 
perament eminently  fitted  him  for  an  adviser  in  chambers ;  and 
his  learning  gave  his  arguments  of  legal  questions  at  Bar  great 
weight. 

The  unspotted  integrity  which  distinguished  his  character, 
and  the  naturally  impartial  and  judicial  qualities  of  his  mind, 
made  him  much  sought  after  as  a  referee  and  as  trustee  of 
large  estates.  The  cases  in  which  he  was  retained  were  usually 
those  involving  large  sums  and  important  issues(i)  ;  and  the 
lawyers  with  and  against  whom  he  strove  were  the  leaders  of  the 
Bar  of  those  days — David  B.  Ogden,  John  C.  Spencer,  Samuel 
Beardsley,  Nicholas  Hill,  Benjamin  F.  Butler,  Ogden  Hoffman, 
David  Graham,  Daniel  Lord,  John  Duer,  George  Wood,  and 
Charles  O'Conor.  (2)  In  1841,  he  became  Judge  of  the  New  York 
Superior  Court,  and  of  his  judicial  services,  his  friend,  Benjamin 
D.  Silliman,  said :  "Never  were  the  high  duties  of  a  judge  per- 
formed with  more  purity  or  what  are,  perhaps,  rarely  combined, 
large  general  knowledge  with  great  accuracy  of  knowledge." 

Besides  his  legal  attainments,  Kent  had  few  equals  in  the  pro- 
fession as  a  scholar  in  classics  and  general  literature. 

His  reading  on  all  subjects  was  extensive,  in  this  respect 
greatly  resembling  his  father,  who  had  devoted  a  vast  amount  of 
time  throughout  his  life  to  general  reading.  (3) 

(1)  Those  who  are   interested  may   consult  among  some   of  his   im- 
portant cases — Clark  v.   Fisher   i    Paige ;   State  of  Illinois  v.  Dclafield  8 
Paige;    Warner  v.  Beers  23  Wendell;  Bolander  v.  Stevens  23  Wendell; 
Curtis  v.  Leaviit  17  Barbour,  i   Smith;  Beekman  v.  The  People  27  Bar- 
bour. 

(2)  Among  the  great  jury  lawyers  in  New  York  at  this  time  were, 
Hugh  Maxwell,  William  M.  Price,  Henry  M.  Western,  James  T.  Brady, 
Ambrose  L.  Jordan,  James  W.  Gerard,  Ogden  Hoffman,  and  David  Gra- 
ham. 

For  an  interesting  account  of  the  New  York  Bar  of  this  period,  see 
Life  of  Charles  O'Conor,  by  Charles  P.  Daly;  Magazine  of  American 
History,  Vol.  XIII  (1885).  "See  also  The  Bench  and  Bar  of  New  York, 
by  L.  B.  Proctor  (1870)  ;  and  Pleasantries  about  Courts  and  Lawyers  of 
New  York,  by  Charles  Edwards  (1867). 

(3)  See  Memoirs  and  Letters  of  Chancellor  Kent  by  his  great  grand- 
son, William  Kent    (1898). 

"It  is  said  that  the  old  Chancellor,  during  his  last  illness,  at  the  age 
of  84  years,  when  he  could  not  sleep,  on  being  asked  if  he  suffered  from 


104  HARVARD  LAW  SCHOOL. 

It  was  the  personality  of  the  man,  however,  quite  as  much  as 
his  legal  talents,  which  attracted  those  who  were  seeking  to  fill 
the  vacant  Dane  Professorship. 

The  fact  that  Judge  Story  had  been,  above  all  else,  a  lovable 
man,  a  friend  to  his  pupils,  an  instructor  who  bound  his  students 
to  him  with  the  closest  ties  of  personal  affection,  was  constantly 
before  the  minds  of  the  Harvard  Corporation. 

It  would  be  an  easy  task  to  find,  in  any  State  of  the  Union, 
a  talented  lawyer;  but  it  was  far  from  easy  to  find  a  lawyer 
whose  personal  charms  should  continue  to  fill  the  Harvard  Law 
School.  Such  a  man,  however,  was  William  Kent.  In  all  that 
was  said  of  him  by  his  fellow  members  of  the  Bar,  during  his 
life  and  at  his  death  in  1861,  no  note  is  so  prominent  as  that  of 
personal  love  for  the  man — the  memory  of  his  kindly  smile,  his 
soft  quiet  speech,  his  winning  manners,  his  affectionate  nature. 

"I  have  never  known  a  man,"  said  Silliman,  "whose  happy 
temper,  warm  heart,  and  kind  and  genial  sympathies,  so  won  and 
attached  to  him  all  classes,  or  so  conduced  to  the  happiness  of 
all  about  him.  I  have  never  known  a  man  whose  wit  and  humor 
and  knowledge  were  so  abounding  and  so  blended,  and  the  in- 
structiveness  and  beauty  and  grace  and  simplicity  or  whose  con- 
versation so  attracted  and  fascinated." 

Such  was  the  new  Royall  Professor,  on  whose  appointment 
the  following  editorial  notice  in  the  Law  Reporter  well  expressed 
the  opinion  of  the  Bar(i)  : 

The  appointment  of  Judge  Kent  is  a  truly  auspicious  event 
to  the  College.  He  was  one  of  those  few  men  who  have 
achieved  the  different  task  of  adding  honour  to  a  name  honour- 
able by  inheritance.  He  was  for  many  years  in  large  practice  in 
the  city  of  New  York,  where  his  learning,  industry,  fidelity  and 
purity  of  life  and  character  secured  him  the  highest  confidence 
and  respect  of  a  large  circle  of  friends  and  clients.  His  appoint- 
ment to  the  bench  gave  universal  satisfaction ;  a  satisfaction  justi- 


depression  in  those  long  sleepless  hours,  replied  that  he  did  not — but  that, 
on  the  contrary,  he  derived  great  satisfaction  in  reviewing  in  his  mind 
some  leading  principle  of  the  law,  going  back  to  its  origin, — to  the  rea- 
sons from  which  it  sprung — then  recalling  in  their  order  the  later  cases 
modifying  or  enlarging  it;  at  other  time  he  would  select  some  period  of 
history,  recall  its  politics,  its  eminent  men,  its  military  acts  in  all  con- 
temporaneous countries — sometimes  a  campaign  of  Alexander,  Caesar, 
or  Marlborough — its  plan,  its  incidents  and  its  results." 

(i)     Law  Reporter,  Vol.  IX,  p.  237  (1846);  see  also  praise  of  the  ap- 
pointment in  Western  Law  Journal,  Vol.  IV,  (1846). 


TRANSITION  PERIOD.  105 

fied  by  the  distinguished  ability  with  which  he  discharged  the 
duties  of  his  high  office. 

He  is  a  man  not  more  respected  for  his  attainments  and  abili- 
ties than  beloved  for  his  warmth  of  heart,  his  simplicity  of  char- 
acter, and  purity  of  life  and  conversation.  He  is  now  in  the 
prime  of  life  and  in  the  full  vigor  of  his  powers  and  we  reason- 
ably hope  from  him  a  long  period  of  valuable  service.  He  pre- 
sents in  his  own  person  that  model  of  a  good  lawyer  and  a  good 
man  whose  silent  influence  is  more  persuasive  than  the  most  elo- 
quent oral  teaching. 

President  Everett  in  his  Annual  Report  spoke  of  the  appoint- 
ment as,  "in  a  high  degree  satisfactory  to  the  friends  of  the  Uni- 
versity and  the  public." 

Kent  at  once  removed  with  his  family  to  Cambridge,  where 
he  was  welcomed,  not  only  by  Greenleaf,  but  by  all  the  Harvard 
College  Professors(i).  From  the  outset,  his  popularity  with  his 
pupils  was  marked ;  and  certainly  no  greater  tribute  could  be 
paid  to  his  personal  charm,  than  his  success  in  captivating  the 
very  students  who  had  sat  under  Judge  Story's  spell. 

On  September  9,  1846,  Greenleaf  wrote  to  Chancellor 
Kent (2)  : 

I  cannot  resist  the  inclination  to  express  to  you  the  great  de- 
light we  all  take  in  our  new  Law  Professor.  He  has  made  quite  a 
strong  and  most  decidedly  favorable  impression  on  all  the  gentle- 
men to  whom  he  has  been  introduced,  and  I  can  hardly  tell  you 
how  often  I  hear  the  remark,  "I  am  delighted  with  your  new 
Law  Professor !"  The  students,  too,  those  keen  observers  of 
character  and  manners,  and  often  not  easy  to  please,  are  quite 
taken  with  his  manner  towards  them,  and  with  the  style  and 
matter  of  his  lectures.  For  myself,  my  every  wish  in  regard  to 
an  asosciate  is  completely  satisfied.  I  perceive  his  strength  of 
mind  and  extent  of  learning  are  fully  adequate,  and  more  than 
sufficient,  to  sustain  the  Law  School,  even  if  he  were  left  alone ; 
and  his  kind  solicitude  to  lighten  my  labors  by  taking  his  full 
share, — a  relief  I  have  never  before  enjoyed, — is  most  grateful 
to  my  heart.  After  the  sorrows  and  cares  of  the  past  year,  I 


(1)  One  of  the  first  Harvard  gatherings  at  which  the  new  Professor 
was  present  was  the  Phi  Beta  Kappa  exercises  on   August  27,    1846,  at 
which  Charles  Sumner  delivered  an  oration  on  "The  Scholar  (John  Pick- 
ering);   the  Jurist   (Story);  the  Artist   (Washington  Allston)  ;   the  Phil- 
anthropist (W.  E.  Channing)  of  which  Longfellow  said  in  his  journal,  "A 
grand,  elevated,  eloquent  oration.     Sumner  spoke  it  with  great  ease  and 
elegance  and  was  from  the  beginning  to  the  end  triumphant." 

(2)  Unpublished  letter  in  possession  of  William  Kent,   Esq.,  Tuxedo 
Park,  N.  Y. 


io6  HARVARD  LAW  SCHOOL. 

now  draw  a  long  breath  once  more,  and  if  I  had  done  no  other 
service  to  the  University  than  to  be  the  instrument  of  bringing 
him  to  this  place,  I  should  boldly  claim  the  merit  of  having  done 
it  a  lasting  good.  It  is  the  place  for  him,  and  he  is  pre-eminently 
the  man  for  the  place.  It  is  one  in  which  the  energies  of  his 
life  will  be  most  honorably  and  usefully  expended  in  the  ad- 
vancement of  our  noble  science,  and  in  elevating  the  standard 
of  morals  in  the  young  men  who  are  to  succeed  us, — a  work 
which  will  be  felt  in  long  coming  time. 

Thus  much,  my  dear  sir,  I  feel  it  due  to  you  and  to  him  to  say. 
Much  more  crowds  for  utterance,  but  I  suppress  it.  I  am  fully 
aware  of  the  greatness  of  the  sacrifice  on  your  part,  and  indeed 
on  his  own;  for  I,  too,  have  dear  sons,  and  am  descending  the 
vale  of  life.  But  the  sacrifice  seems  demanded  by  the  high  con- 
sideration of  the  great  public  good  he  is  so  well  fitted  to  perform 
here, — Non  nostrum  soli  sumus, — and  I  doubt  not.it  will  pro- 
duce a  rich  reward — "blessing  both  him  that  gives  and  him  that 
takes." 

With  many  prayers  for  increasing  comforts  to  yourself  in  your 
old  age,  and  the  love  of  Him  who  is  the  crown  of  a  better  hope 
than  this  life  can  afford,  I  remain 
Dear  Sir 

Most  respectfully  and  affectionately  yours, 

Simon  Greenleaf. 

This  year  of  confusion  in  the  Law  School  had  been  one  of  ex- 
citement throughout  the  Nation. 

In  May,  1846,  Congress  had  declared  war  on  Mexico.  As  is 
well  known,  the  war  met  with  more  bitter  opposition  in  Massa- 
chusetts than  in  any  State  of  the  Union.  At  the  Law  School,  the 
students  were  sharply  divided  on  the  question,  and  many  exciting 
debates  took  place  in  the  Debating  Club.  The  large  numbers  of 
students  from  the  South,  and  the  prevalence  of  oratorical  ability 
among  them,  produced  many  conflicts  with  the  strong  body  of 
conservative  Whig  students.  Chief  among  the  Southern  stu- 
dents as  a  debater  appears  to  have  been  Patrick  Henry  Aylett 
(L.  S.  1845-47),  a  young  Virginian,  great  grandson  of  Patrick 
Henry.  It  is  said  that  when  he  was  present  at  a  mass  meeting 
favorable  to  the  war  held  in  Faneuil  Hall  in  Boston,  "someone 
announced  during  the  speaking  that  a  descendant  of  Patrick 
Henry  was  present.  Immediately  there  was  a  great  outcry  for 
him  and  he  was  forced  upon  the  rostrum.  His  speech  is  said 
to  have  made  Faneuil  Hall  shake  with  applause  as  it  was  wont 
to  do  when  Webster,  Everett.  Choate,  and  Winthrop  spoke."(i) 

(i)     Virginia  Lawyers,  Green  Bag,  Vol.  X. 


TRANSITION  PERIOD.  107 

The  slavery  question  was  now  becoming  more  and  more  acute. 
In  August,  David  VVilmot  of  Pennsylvania  proposed,  in  Congress, 
his  famous  Proviso,  that  slavery  should  be  forever  prohibited 
in  all  territory  acquired  from  Mexico.  Henry  Wilson  moved  in 
the  Massachusetts  Legislature,  resolutions  "which  should  express 
in  fitting  terms  the  hostility  of  Massachusetts  to  the  institution 
of  slavery."  At  the  Whig  convention  in  Faneuil  Hall  in  Sep- 
tember, 1846,  Charles  Francis  Adams  and  Charles  Sumner  pro- 
claimed the  divorce  between  the  "Conscience  Whigs,"  and  the 
"Cotton  Whigs",  Sumner  thus  emphasizing  the  estrangement  be- 
tween himself  and  his  former  friends.  During  this  year,  Lowell 
began  the  publication  of  his  Bigelow  Papers. 

In  1846-47,  the  very  small  reduction  in  the  number  of  students 
showed  that  Professor  Kent's  appointment  had  met  with  favor, 
133  being  reported  as  present  October  20,  1846.  In  the  spring 
term,  the  number  fell,  as  usual,  there  being  then  reported  102, 
of  whom  only  32  were  from  Massachusetts. 

Professor  Kent  gave  courses  during  this  year  on  Insurance, 
Sales,  Agency,  Partnership,  Kent,  and  Blackstone ;  Greenleaf ,  on 
Equity  Jurisprudence  and  Pleadings,  Common  Law  Pleadings, 
Evidence  and  Real  Property. 

Kent  was  the  first  Law  Professor  installed  without  inaugural 
ceremonies;  for,  as  President  Everett  wrote  to  him  February  i, 
1847,  the  practice  had  "fallen  into  disuse  on  account  of  ex- 
pensiveness,  the  interruption  caused  to  the  regular  business  of 
the  Institution  which  extends  to  several  days  besides  that  on 
which  the  ceremony  takes  place,  the  inconvenience  of  public  din- 
ners at  the  University,"  so  that  for  twelve  years  no  College 
Professor  had  had  formal  inauguration.  ( i ) 

In  November,  1846,  Chancellor  Kent,  then  83  years  old,  paid 
a  visit  to  his  son,  described  by  Edward  Simon,  who  was  then  a 
student  in  the  School,  (1844-47),  m  a  recent  letter  as  follows(2)  : 

Chancellor  Kent  was  then  very  ancient  and  seldom  visited. 
He  gathered  enough  strength  to  come  to  hear  his  son  lecture. 
His  advent  had  been  announced  and  we  were  all  on  tip-toe  for 
the  occasion.  My  memory  depicts  him  as  a  tall  person  bowed 


(i)  See  Letters  of  President  F.verett  to  Kent,  February,  1847,  and 
to  Greenleaf,  February  22,  1847 — Harvard  Coll.  Archives,  Letters  of  the 
President. 

(2^  Letters  to  the  author  from  Edward  Simon  of  St.  Martinville,  La., 
November,  1907. 


io8  HARVARD  LAW  SCHOOL. 

down  by  his  great  age,  moving  slowly  under  its  pressure  as  he 
walked  towards  the  seat  appointed  for  him  in  the  lecture  room. 
His  son  had  ascended  the  rostrum,  when  the  Chancellor  ap- 
peared, slowly  with  weak  steps  advancing  towards  the  front 
bench.  A  burst  of  applause  from  the  several  students  greeted 
him,  such  as  is  seldom  heard.  He  bowed  courteously  to  us.  His 
son  the  professor  was  so  affected  by  this  demonstration  that  he 
wept  like  a  child  and  could  hardly  proceed  with  his  lecture.  To 
our  disappointment  the  Chancellor  made  no  address. 

At  the  close  of  his  first  year,  Professor  Kent  found  it  necessary 
to  resign  owing  to  the  increasing  infirmity  of  his  father.  The 
announcement  of  his  intention  was  received  with  great  regret  (i), 
and  by  no  one  more  than  by  his  students,  who  addressed  a  letter 
to  him,  the  tone  of  which  may  be  gathered  from  Kent's  reply, 
dated  from  New  York,  October  12,  1847: 

I  have  read  with  deeply  gratified  feelings  your  communication 
in  behalf  of  my  former  pupils  of  the  Law  School.  I  did  not 
willingly  leave  you  and  them,  nor  resign  without  sincere  and 
lasting  regret  my  tranquil  and  p*leasing  life  in  the  University.  It 
was  an  event  which  left  me  no  choice — it  was  a  point  of  duty 
admitting  of  no  question  that  compelled  me  to  relinquish  the 
pursuits,  studies,  duties,  and  society  which  made  the  last  year  the 
happiest  of  my  life.  Your  well  known  names  bring  vividly  be- 
fore me  the  generous  and  ingenuous  youth,  whose  unvarying 
courtesy,  patient  attention,  and  increasing  application  made  my 
instructions  a  source  of  daily  pleasure,  and  my  intercourse  with 
them  a  subject  of  the  most  pleasing  recollection. 

I  do  not  assume  to  myself  the  praise  which  your  warm  feelings 
award.  It  is  sufficient  to  me  to  be  conscious  of  having  earnestly 


(i)     See  Law  Reporter,  Vol.  X,  (Oct.  1847)  : 

"It  is  believed  that  the  duties  of  his  post  were  congenial  to  his  tastes 
and  it  is  admitted  by  all  that  he  performed  them  with  eminent  success. 
His  amenity  and  simplicity  of  manners,  his  learning  and  his  willingness 
to  teach  interested  the  School  at  once  in  him  and  in  their  studies.  His 
relations  with  the  other  gentlemen  engaged  in  the  different  departments 
of  the  University  were  of  the  happiest  character.  It  is  a  source  of  no 
slight  regret  that  he  should  be  obliged  to  withdraw  from  such  a  field  of 
usefulness  leaving  a  place  vacant  which  it  will  be  difficult  to  fill  with 
equal  satisfaction  to  the  University  and  to  the  community.  But  the  health 
of  the  venerable  Chancellor  Kent  seemed  to  leave  him  no  alternative." 

President  Everett  wrote  to  Kent  Sept.  10,  1847, — Harv.  Coll.  Archives- 
Letters  of  the  President: 

"The  difficulty  we  had  in  filling  the  vacancy  occasioned  by  Judge  Story's 
decease  was  so  great,  our  satisfaction  in  common  with  that  of  the  public 
was  so  entire  and  our  apprehension  of  the  shock  which  the  Law  School 
will  suffer  by  your  leaving  it,  are  so  lively,  that  I  must  hope  you  will  so 
far  re-consider  the  subject  as  to  suspend  your  definite  resignation  or 
await  for  .a  while  longer  the  progress  of  events." 


TRANSITION  PERIOD.  109 

endeavored  to  teach  the  just  interpretation  and  nature  of  our  laws 
and  to  inculcate  the  true  spirit  of  professional  practice.  Happy 
shall  I  be  if  permitted  to  believe  that  amidst  the  scenes  of  life 
which  are  immediately  opening  to  you  and  your  contemporaries, 
anything  that  I  may  have  taught  shall  be  resorted  to  in  the  mo- 
ments of  trial,  difficulty  or  temptation,  which  occur  to  all,  and 
shall  be  found  to  give  "ardour  to  virtue  and  confidence  to  truth." 

The  following  resolution  was  passed  by  the  Corporation  on 
Sept.  18,  1847,  m  accepting  the  resignation  ( I )  : 

That  the  President  be  requested  to  tender  to  Judge  Kent 
the  assurance  of  the  high  respect  entertained  by  the  Corporation 
for  his  personal  character  and  professional  standing,  and  their 
deep  regret  for  the  loss  of  his  services  in  the  Law  School  and 
of  their  sincere  sympathy  with  him  in  those  domestic  afflictions 
which  have  made  his  resignation  necessary. 

Greenleaf  was  thus  again  left  alone  at  his  post  at  the  beginning 
of  1847-48(2)  ;  and  during  the  first  term  gave  courses  on  Black- 
stone,  Equity  Pleadings  and  Jurisprudence,  Bills  and  Notes,  and 
Bailments,  assisted  on  ten  lecture  days  by  John  C.  Adams  and 
on  fifteen  by  George  T.  Curtis  (L.  S.  1833-34). 


(1)  Kent  wrote,  six  years  later,  Feb.   17,   1853,  to  President  Walker: 
"I   often   look  back  at  the  happy  year   I   spent  within  your   walls.     It 

was  a  singular  episode  in  my  life  and  so  strangely  contrasted  with  my 
present  pursuits  that  it  seems  like  a  dream." — Harv.  Coll.  Papers.  2nd 
Series,  Vol.  XIX. 

(2)  Prior  to  this  time,  Greenleaf  had  been  relieved  of  continuing  his 
residence  in  Cambridge,  owing  to  reasons  connected  with   the  health  of 
his  family. 

See  Vote  and  Report  of  Committee  Chief  Justice  Shaw  and  C.  G. 
Loring — Corporation  Records,  June  26,  1846: 

"Upon  full  inquiry  and  after  a  free  conference  with  Mr.  Greenleaf,  we 
are  satisfied  that  upon  personal  consideration  of  great  weight,  he  has 
come  to  the  conclusion  that  he  cannot  continue  to  reside  at  Cambridge 
permanently  with  his  family  consistently  with  his  duty ;  and  we  are  sat- 
isfied that  under  the  peculiar  circumstances  of  the  case  he  is  right  in  his 
conclusion.  He  has  no  desire  of  obtaining  an  exemption  of  the  duty  of 
personal  residence  at  Cambridge  with  a  view  of  engaging  in  any  other 
business  nor  of  withdrawing  any  portion  of  the  time  and  attention  usually 
given  to  his  daily  attendance  on  the  School.  Highly,  therefore,  as  we 
estimate  the  importance  of  the  rule  which  requires  a  residence  of  the 
Professor  at  Cambridge,  we  are  of  opinion  that  under  the  special  cir- 
cumstances of  the  case,  it  is  expedient  to  grant  Mr.  Greenleaf  an  ex- 
emption from  his  duty  on  and  after  the  termination  of  the  present  term 
and  during  the  pleasure  of  the  Board. 

Voted  that  Professor  Greenleaf  of  the  Law  School  from  and  after  the 
termination  of  the  present  term  be  exempted  from  the  duty  of  a  perman- 
ent residence  at  Cambridge  during  the  pleasure  of  the  Board ;  it  being 
understood  that  this  measure  will  in  no  other  respect  affect  his  duties 
as  such  Professor." 


i  io  HARVARD  LAW  SCHOOL. 

The  following  reference  to  Greenleaf,  written  by  a  student  of 
that  period,  gives  an  interesting  illustration  of  his  general  atti- 
tude towards  the  student  body: 

We  well  remember  portions  of  Prof.  Greenleaf's  introductory 
lecture  in  1847  t°  the  Senior  Law  Class  of  which  we  were  a  mem- 
ber. We  were  greatly  pleased  with  it  then,  but,  even  before  the 
close  of  the  term,  became  satisfied  that  the  learned  and  good 
Professor  was  in  error.  He  said  that  the  members  of  the  class 
had  come  there  to  learn  the  law,  and,  it  was  presumed,  under- 
stood the  importance  of  correct  conduct — that  was  a  matter  sub- 
mitted wholly  to  themselves,  that  he  and  his  brother  of  the 
faculty  were  not  there  to  act  as  high  constables  over  a  parcel  of 
legal  gentlemen.  ( i ) 

The  Corporation  again  found  great  difficulty  in  selecting  a  new 
Professor.  One  of  the  lawyers  prominently  suggested  had  been 
John  Mason  Williams,  Judge  of  the  Court  of  Common  Pleas 
from  1821  to  1839  and  Chief  Justice  from  1839  to  1844;  but  he 
was  regarded  as  too  old  to  undertake  a  new  occupation,  being 
then  67  years  of  age.  Peleg  Sprague,  Judge  of  the  United  States 
District  Court,  had  been  considered,  but  had  declined.  Benjamin 
R.  Curtis  and  Charles  G.  Loring,  members  of  the  Corporation, 
had  both  declined.  Judge  Frederick  H.  Allen  of  Maine  had  been 
strongly  urged.  Sumner  had  been  again  considered,  but  was 
vigorously  opposed  by  those  who  dissented  from  his  radical  views 
on  political  and  social  questions,  and  who  comprised  the  wealthy, 
educated,  and  conservative  portion  of  Boston,  holding  the  con- 
trolling power  in  College  affairs.  Furthermore,  it  would  appear 
that  neither  his  personality  nor  his  services  had  been  particularly 
acceptable  to  the  students,  on  the  occasions  when  he  had  served 
as  Instructor.  (2) 


(1)  Legal    Education — Law    Schools    in    Western    Jurist,    Vol.    VIII, 

(1874). 

(2)  See  interesting  letter  from  Chief  Justice  Shaw  to  President  Everett 
— Harv.  Coll.  Papers,  2nd  Series,  Vol.  XV. 

Edward  L.  Pierce  in  his  Memoirs  and  Letters  of  Charles  Sumner,  Vol. 
II,  says: 

"William  Kent,  while  unable  to  comprehend  Sumner's  departure 
from  conservative  teachings  and  associations,  showed  a  tender  and  un- 
failing interest  in  his  welfare.  His  letters  are  instructive,  as  revealing 
how  Sumner  was  regarded  by  one  who  was  repelled  by  what  seemed  to 
Kent  his  delusions  on  politics  and  moral  reforms,  and  yet  who  had  come 
near  enough  to  him  to  feel  his  worth  and  the  charm  of  his  personal  qual- 
ities. He  wrote,  Sept.  24,  1847,  soon  after  signing  the  law  professor- 
ship at  Cambridge : 

'You  ought  to  succeed  me,  Sumner.     The  place  was  yours  by  heredi- 


Henry  Wheaton 


TRANSITION  PERIOD.  in 

Meanwhile,  Greenleaf  favored  the  appointment  of  two  new 
Professors  instead  of  one,  being  convinced,  as  he  wrote  to  Everett, 
that  the  "sad  experience  of  the  last  two  years  shows  the  inadvisa- 
bility  of  the  School  depending  on  the  life  or  health  of  one  Pro- 
fessor.'^ i)  He  wrote  further  that  instruction  in  International 
and  Constitutional  Law,  Roman  and  Civil  Law,  Conflict  of  Laws, 
Equity  Jurisprudence  and  Pleading,  and  Admiralty  was  extremely 
necessary ;  and  he  referred  to  the  increased  attention  which  legal 
education  had  attracted  in  the  last  few  years, — the  placing  of  the 
Yale  Law  School  on  a  permanent  foundation,  and  the  opening 
of  new  schools  in  New  York,  New  Jersey,  New  Orleans  and 
elsewhere : 

Nothing  has  contributed  more  to  this  than  the  establishment 
of  the  Cambridge  School,  which  has  now  its  imitators  and  will 
soon  have  its  rivals,  in  all  parts  of  the  Union.  In  the  discussions 
of  the  subject  in  England,  and  especially  before  the  Parliamentary 
Committee,  this  Institution  has  been  repeatedly  appealed  to  by  the 
friends  of  Academical  Instruction  as  an  example  worthy  of 
imitation  there ;  and  I  believe  it  has  had  its  effect  in  the  recent 
revival  of  readings  and  Lectures  in  the  Inns  of  Court. 

The  Corporation,  though  not  prepared  to  establish  a  new  pro- 
fessorship, appointed  as  Lecturer  on  Civil  Law  and  the  Law  of 
Nations,  October  3,  1847,  Henry  Wheaton,  then  late  United 
States  Minister  to  Prussia,  and  author  of  Elements  of  Interna- 
tional Law. 

He  died,  however,  before  beginning  his  lectures.  (2) 

tary  right,  and  it  required  incessant  efforts  on  your  part  to  divest  your- 
self of  this  right.  You  have  chosen  a  lot  more  brilliant  perhaps,  more 
exciting  certainly.  You  have  troops  of  friends  and  enthusiastic  applause ; 
and  you  think  you  are  doing  good,  and  you  are  certainly  generous  in 
your  aspirations  and  aims.  I  regret,  however,  deeply  regret,  your  course. 
You  ought  to  have  been  a  great  lawyer,  adding  to  the  fields  of  juris- 
prudence, extending  the  domains  of  judicial  truth,  teaching  us  what  are 
the  maxims  of  justice  between  man  and  man,  and  nation  and  nation, 
and  how  conflicting  claims  shall  be  adjusted.  I  wish  you  had  been  liable 
to  censure,  similar  to  that  of  Goldsmith  on  Burke,  and  that  you  had 
given  to  the  profession  what  you  now  conceive  is  meant  for  mankind. 
I  think  you  are  in  error,  and  I  am  your  friend  so  sincerely  that  I  risk 
your  displeasure  by  plainly  telling  you  so.  Strike,  but  hear!'  " 

(1)  See  Harv.  Coll.  Papers,  2nd  Series,  Vol.  XV. 

(2)  Henry  Wheaton  was  born  in  Providence,  Rhode  Island,   Novem- 
ber 27,  1785,  graduated  from  Brown  in  1802,  and  studied  in  a  law  office 
in    Providence,   where   he   practised   until   his   removal   to    New   York   in 
1813.     He  published  his  famous  Treatise  on   the  Law  of  Maritime  Cap- 
tures and  Prizes,  in   1815 — the  first   American   work  on  the   subject.     In 
1816,   he  was   appointed   Reporter   of  the   United   States   Supreme   Court, 
a  position  which  he  held  until  1827,  appearing  also  before  that  Court  in 


ii2  HARVARD  LAW  SCHOOL. 

This  appointment  of  a  Lecturer  did  not  meet  with  Greenleaf  s 
approval,  and  he  wrote  to  Everett,  Oct.  2,(i)  : 

I  observe  that  Mr.  Wheaton  is  to  deliver  a  course  of  lectures 
on  legal  subjects,  by  which  I  understand  lectures  written  out  to  be 
read  to  the  students.  This  method  was  tried  in  Dr.  Pollen's  day ; 
and  though  his  lectures  were  both  learned  and  elegantly  composed 
and  well  delivered,  they  were  not  interesting  to  the  students  and 
were  at  last  nearly  deserted.  That  mode  of  instruction  has  here- 
tofore not  been  acceptable  to  the  law  students. 

The  policy  of  the  Corporation  was,  however,  thus  expressed  by 
President  Everett  in  his  Annual  Report  for  1846-47 : 

The  condition  of  the  Law  School  does  not  at  this  time  admit 
of  the  establishment  of  a  permanent  Professorship  of  Civil  and 


many  important  cases,  associated  with  Webster  and  other  leaders  of  the 
Bar.  On  the  death  of  Judge  Livingston,  in  1823,  his  name  was  con- 
sidered, together  with  that  of  ex-Chancellor  Kent,  for  the  vacancy,  to 
which  Smith  Thompson,  of  New  York,  was  finally  appointed. 

In  1824,  he  was  elected  a  commissioner  by  the  New  York  Legislature 
with  John  Duer  and  B.  F.  Butler,  in  the  first  attempt  made  by  any  State 
to  draw  up  a  civil  and  criminal  code. 

In  1827,  he  became  Charge  d'affaires  in  Denmark,  where  his  great 
knowledge  of  International  Law  brought  him  distinction.  He  was  ap- 
pointed, in  1835,  Minister  to  Prussia,  which  position  he  held  until  1846. 
While  there,  he  published  a  pamphlet  advocating  the  Suez  and  Panama 
Canals,  being  the  pioneer  of  these  projects.  His  ability  and  experience 
were  recognized  to  such  an  extent  that  foreign  diplomats  frequently 
sought  his  advice. 

In  1847,  he  returned  to  America,  being  displaced  by  President  Polk, 
and  died  March  n,  1848.  He  published,  in  1836,  his  world-famous 
Elements  of  International  Law,  and  in  1845,  his  History  of  the  Law  of 
Nations.  These  works  have  had  numerous  editions,  and  it  has  been  said 
justly  that  "if  they  did  not  create  International  Law,  they  at  least  made 
it  a  science."  He  was,  in  fact,  the  founder  of  the  modern  law  of  that 
subject. 

See  Henry  Wheaton,  Green  Bag,  Vol.  XVI  (1844);  and  an  especially 
interesting  monograph  by  William  V.  Kellen  entitled,  Henry  Wheaton, 
an  Appreciation  (1902).  See  also  Obituary  of  Wheaton,  by  Charles  Sum- 
ner,  in  Boston  Daily  Advertiser,  quoted  in  Western  Law  Journal,  Vol. 
V  (April  1848). 

(i)  From  letters  of  President  Everett  to  Chief  Justice  Shaw,  March 
13,  1846,  and  to  Wheaton,  Sept.  29,  1847,  it  would  appear  that  the  Cor- 
poration had  in  mind  to  make  Wheaton  later  a  full  professor — See  Harv. 
Coll.  Archives,  Letters  of  the  President. 

Everett  wrote  to  Greenleaf  Nov.  16,  1847 : 

"Among  the  reasons  which  led  the  Corporation  to  establish  this  lec- 
tureship, was  the  opinion  repeatedly  expressed  by  yourself  and  Judge 
Kent  that  such  a  lectureship  would  materially  add  to  the  attraction  of  the 
Law  School,  accompanied  occasionally  by  a  favorable  estimate  on  your 
part  of  Mr.  Wheaton's  qualifications  for  it  for  which  he  is  the  best  fitted 
in  the  United  States  as  far  as  familiarity  with  the  subject  creates  fitness." 


TRANSITION  PERIOD.  113 

International  Law ;  but  the  President  is  not  without  hopes  that 
the  success  of  the  present  experiment  will  be  such,  as  to  warrant 
the  Corporation  in  recommending  the  foundation  of  such  a  Pro- 
fessorship, at  no  distant  period. 

The  number  of  law  students  is  about  the  same  as  at  the  com- 
mencement of  the  last  academic  year, — a  satisfactory  indication 
that  the  public  confidence  in  the  School  remains  unimpaired,  by 
recent  changes.  The  appointments  made  the  present  term  .  .  .  are 
such  as  to  warrant  the  hope,  that  this  confidence — hitherto  so 
liberally  enjoyed  by  the  institution — will  be  confirmed  and 
strengthened.  At  the  same  time,  it  may  be  proper  to  state,  that 
law  schools  are  springing  up  in  considerable  numbers,  and  in 
some  instances  under  the  most  respectable  auspices,  in  different 
parts  of  the  Union.  The  names  of  fifteen  or  sixteen  institutions 
already  organized  or  projected  have  been  given  to  the  public; 
and  it  would  be  no  matter  of  surprise  should  they  divert  to  estab- 
lishments nearer  home  a  portion  of  those  who  might  otherwise 
come  to  Cambridge.  It  will  be  the  steady  aim  of  the  Corpora- 
tion, by  engaging  the  highest  professional  talent  in  the  chairs  of 
instruction,  by  constantly  adding  to  the  library,  already,  it  is 
believed,  the  largest  law  library  in  the  United  States,  and  by 
every  other  mode  of  increasing  the  advantages  of  the  School,  to 
sustain  the  honorable  name  which  it  has  hitherto  enjoyed,  and,  if 
possible,  to  render  it  more  and  more  worthy  of  public  confidence. 

To  fill  the  Royall  Professorship  the  choice  of  the  Corporation 
finally  fell  on  Joel  Parker,  the  distinguished  Chief  Justice  of  New 
Hampshire.  He  at  first  declined  the  appointment;  but  being 
strongly  pressed  by  Everett(i),  he  came  to  Cambridge,  inspected 
the  School  with  Greenleaf,  and  finally  decided  to  accept  the  ap- 
pointment formally  made  by  the  Corporation,  November  6,  1847. 


(i)  See  letter  of  Everett  Oct.  6,  1847,  Harv.  Coll.  Archives,  Letters  of 
the  President: 

"I  would  observe  that  the  duties  of  the  office  are  perhaps  less  onerous 
than  you  suppose.  They  amount,  I  believe,  to  only  one  lecture  per  diem 
for  five  days  in  the  week  for  40  weeks.  .  .  .  This  lecture  is  not  us- 
ually nor  frequently  a  written  lecture,  but  an  oral  commentary  on  the  text 
book,  requiring,  I  suppose,  not  more  preparation  than  an  ordinary  charge 
to  the  jury  in  cases  when  no  nice  point  of  law  is  to  be  discussed.  Besides 
this,  you  would  preside  half  the  time  in  the  Moot  Courts,  held  weekly,  and, 
having  a  very  commodious  office,  rent  free,  in  Dane  Hall,  would  give 
your  attendance  there,  generally  in  the  forenoon,  to  receive  calls  from 
students  and  aid  in  directing  the  miscellaneous  affairs  of  the  School.  .  .  . 

Both  Professor  and  Mrs.  Kent  have  assured  me  that  he  was  particularly 
pleased  with  the  office  and  happy  in  it  and  found  it  more  to  his  taste  than 
any  he  ever  filled.  ...  I  will  only  add  that  if  you  could  be  prevailed 
to  come  among  us,  I  think  you  would  find  an  amicable  and  hospitable  so- 
cial circle,  and  such  a  welcome  as  you  could  wish." 


H4  HARVARD  LAW  SCHOOL. 

JOEL   PARKER. 

Joel  Parker  was  born  in  JafTrey,  New  Hampshire,  January  25. 

i795-(i) 

His  father  had  been  an  early  settler  in  the  town,  having  re- 
moved there  from  Pepperell,  Mass.,  a  farmer,  a  leading  man  in 
the  County,  and  for  some  time  Judge  of  Probate.  Parker  gradu- 
ated from  Dartmouth  College  in  1811,  six  years  before  the 
famous  Dartmouth  College  Case,  in  the  same  class  with  Chief 
Justice  Shepley  of  Maine.  After  reading  law  in  his  brother 
Edmund's  office  in  Amherst,  N.  H.,  he  was  admitted  to  the  Bar  in 
1815,  the  year  in  which  Isaac  Parker  became  Royall  Professor, 
and  began  to  practice  in  Keene,  N.  H.  In  1821,  he  removed  to  the 
West,  opening  an  office  in  Cincinnati,  and  was  admitted  to  prac- 
tice in  the  United  States  Circuit  Court  in  Columbus,  in  January. 
1822.  The  venture  was  unsuccessful ;  few  clients  appeared ;  and 
he  soon  returned  to  New  Hampshire,  where  he  served  in  the 
Legislature,  in  1824-26. 

His  practice,  especially  in  cases  involving  abstruse  legal  prob- 
lems, increased;  and  in  1833,  he  was  appointed  to  the  Superior 
Court,  becoming  in  1838,  its  Chief  Justice.  In  1837,  Dartmouth 
College  conferred  on  him  the  degree  of  LL.D.,  and  from  1845 
to  1857  he  held  the  Professorship  of  Medical  Jurisprudence  in 
that  College.  In  1842,  four  years  after  he  became  Chief  Justice 
and  five  years  before  his  appointment  as  Royall  Professor  at  the 
Law  School,  Parker  seriously  considered  resigning  his  judgeship, 
because  of  its  meagre  salary  of  $1,300,  and  engaging  in  busi- 
ness. (2) 

Fortunately  he  did  not  carry  out  his  plan,  and  each  year  his 
judicial  fame  increased,  both  in  and  out  of  New  Hampshire ;  so 

(r)  See  Biographical  Sketch  of  Joel  Parker,  by  George  S.  Hale,  Amer. 
Law  Review,  Vol.  X  (1875). 

Memoir,  by  Emory  Washburn,  Mass.  Hist.  Soc.  Proc.   (1875). 

(2)  The  Law  Reporter  said  (Vol.  V,  November  1842),  in  a  review 
of  one  of  his  charges  to  the  Grand  Jury : 

"Since  reading  this  excellent  charge  we  have  heard  a  rumor  that  Mr. 
C.  J.  Parker  has  resigned  the  place  which  he  so  ably  fills  upon  the  bench 
of  N.  H.  and  has  accepted  the  agency  of  one  of  the  Lowell  factories. 
If  this  be  true  we  are  sorry  for  it.  We  are  sorry  that  he  has  left  a  place 
which  he  has  occupied  with  such  ability  and  such  usefulness  and  con- 
descended to  assume  a  function  so  inferior  in  dignity  and  usefulness, 
however  more  lucrative  it  may  be.  We  confess  that  we  desire  to  see 
among  the  members  of  the  Bar  and  of  the  Bench,  some  sense  of  the 
dignity  of  their  place  and  profession,  and  to  have  them  governed  by  the 
feeling  that  to  secure  the  largest  possible  income  is  not  the  chief  end 
of  man." 


TRANSITION  PERIOD.  115 

that  in  1844,  the  Laiv  Reporter  said  :  "It  would  not  be  unjust  to  his 
associates  to  distinguish  Mr.  C.  J.  Parker  as  entitled  to  peculiar 
honour  for  his  services  on  the  bench.  He  may  be  justly  regarded 
as  one  of  the  ablest  judges  of  the  country."(i) 

As  a  judge,  he  was  cautious,  critical,  and  exact  to  the  utmost, 
achieving  the  highest  reputation  for  care  and  thoroughness  of 
research,  and  for  independence  of  opinion.  His  judgments,  while 
very  numerous (2),  were  notable,  not  only  for  sound  learning  and 
profound  analysis,  but  also  for  their  fairness  and  impartiality.  If 
he  had  a  defect  at  the  Bar  and  on  the  Bench,  it  was  that  he  too 
frequently  shot  over  the  heads  of  those  whom  he  was  seeking  to 
convince — the  jury  as  well  as  the  court.  Of  his  fearless  adher- 
ence to  his  own  convictions,  when  opposed  to  the  opinions  of 
others,  however  eminent  in  place  and  influence,  the  most  noted 
instance,  prior  to  his  acceptance  of  the  Royall  Professorship  at 
Harvard,  had  been  his  judicial  conflict  with  Judge  Story  over  the 
interpretation  of  the  bankrupt  law  of  1841 — an  episode  so  char- 
acteristic of  the  man  as  to  deserve  detailed  notice. 

In  April,  1842,  Judge  Story,  in  an  elaborate  opinion  in  Ex-parte 
Foster  (2  Story  131),  had  held  that  the  clause  of  the  Federal 
bankruptcy  act  preserving  "all  liens,  mortgages  or  other  securities 
on  property  real  or  personal  which  may  be  valid  by  the  laws  of 
the  States  respectively,"  did  not  apply  to  attachments  on  mesne 
process ;  that  property  so  attached  in  the  State  courts  should  be 
handed  over  to  the  Federal  assignee  in  bankruptcy,  and  that  the 
Federal  courts  had  the  power  to  restrain  the  State  courts  by  in- 
junction from  giving  effect  to  such  attachments.  A  year  and  a 
half  later,  in  January,  1844,  in  Kittredge  v.  Warren  (14  N.  H. 
509),  Judge  Parker  delivered  an  opinion  strenuously  denying  the 
doctrine  laid  down  by  Story (3).  In  July,  1844,  Story,  in  Belloit's 
v.  Peck,  (3  Story  428)  reaffirmed  his  former  opinion,  saying  that 
it  would  be  the  duty  of  the  District  Court  to  enjoin  the  creditor  or 
the  sheriff  from  proceeding  to  judgment  or  levy  on  property  at- 
tached in  the  State  court ;  and  that  the  laws  and  courts  of  the 


(1)  See  Law  Reporter,  Vol.  VII,  May,  1844. 

(2)  During  his  term   of  service  on  the  bench,  there  were  no  official 
court   reporters,   the    judges   themselves   preparing   the    volumes    of    New 
Hampshire    Reports.      Judge    Parker    wrote    the    opinion    in    510    out    of 
1244  cases. 

(3)  In   Hubbard  v.   Hamilton   Bank,   7   Mete.   314    (1844),    Dewey   J. 
speaks  of  "the  very  able  and  learned  opinion  of  Chief  Justice  Parker  in 
Kittredge  v.  Warren." 

See  also  Davenport  v.  Tilton,  10  Mete.  326  (1845). 


n6  HARVARD  LAW  SCHOOL. 

United  States  were  paramount  to  the  authority  of  those  of  the 
State.  Later  in  this  same  year,  Parker  responded  in  a  tart 
opinion,  in  Kittredge  v.  Emerson,  (15  N.  H.  227).  in  which  this 
vigorous  and  recalcitrant  utterance  was  made : 

There  is  further  matter  in  the  opinion  in  the  case  of  Bellows 
v.  Peck,  of  a  character  which  may  well  astonish,  if  it  does  not 
alarm  us,  and  which  we  cannot  pass  by  in  silence  upon  the  present 
occasion.  .  .  .  There  is  no  principle  or  pretence  of  a  prin- 
ciple of  which  we  are  aware,  on  which  we  can  admit  the  right 
of  the  Circuit  or  District  courts  in  any  manner  to  interfere  and 
stop  the  execution  of  the  final  process  of  the  courts  of  this  State. 
It  is  an  assumption  of  power  that  cannot  be  tolerated  for  a  single 
instant.  ...  If  our  opinions  respecting  his  (the  U.  S.  Dis- 
trict Judge's)  authority  are  correct,  a  resort  to  coercive  measures 
to  enforce  an  injunction  or  to  punish  a  disregard  of  it,  might  pos- 
sibly not  be  entirely  safe,  for  those  at  least,  who  should  attempt 
to  execute  the  order :  but  this  is  a  matter  upon  which  we  shall  not 
enter.  Should  our  faith  on  this  subject  prove  unfounded,  our 
course  is  clear. 

This  whole  question  had  become  one  of  States'  rights  against 
Federal  interference,  and  New  Hampshire  now  urged  precisely 
the  same  grounds  in  behalf  of  State  sovereignty  that  South 
Carolina  and  other  Southern  States  had  so  long  been  maintaining ; 
and  in  June,  1844,  the  Governor  of  New  Hampshire  called  the 
attention  of  the  Legislature  to  the  controversy  and  to  the  perils 
that  must  flow  from  it.  On  December  26,  1844,  the  Legislature 
unanimously  passed  a  joint  resolution  sustaining  "the  firm  and 
decided  stand"  of  the  court  "in  opposition  to  the  unwarrantable 
and  dangerous  assumptions  of  the  Circuit  Court  of  the  United 
States."  On  December  31,  1844,  Judge  Story  responded  to 
Parker  and  the  New  Hampshire  State  Government,  by  an  elabor- 
ate opinion,  or  rather  dictum,  in  Ex-part e  Christy  (3  Howard 
292),  as  the  case  called  for  no  opinion  on  the  points  pressed  by 
Story,  (the  Court  holding  that  it  had  no  jurisdiction).  Judge 
Parker,  therefore,  in  a  case  arising  a  few  months  later,  July,  1845, 
in  New  Hampshire, — Peck  v.  Jenness  (16  N.  H.  516), — absolute- 
ly disregarding  the  dicta  of  the  United  States  Supreme  Court,  re- 
affirmed his  original  decision.  This  case  was  decided  on  appeal 
to  the  United  States  Supreme  Court  in  1849  (7  Howard  612) — 
four  years  after  Story's  death,  and  two  years  after  Parker  be- 
came Royall  Professor — and  the  decision  was  wholly  in  Parker's 


TRANSITION  PERIOD.  117 

favor  and  against  Story's  views.     So  ended  the  famous  Seven 
Years'  War. 

Of  Parker's  personal  characteristics,  the  most  prominent  were 
the  independence  of  his  judgment  and  the  positiveness  of  his  con- 
victions reached  slowly  but  decisively.  His  nature  was  in  a 
•narked  degree  tender  and  sensitive,  but  his  outward  manner  was 
cahn  and  cold  and  gave  slight  indication  of  his  finest  traits.  When 
aroused,  he  was  controversial  in  the  extreme,  especially  during 
the  latter  part  of  his  life ;  and  for  keen  sarcasm  and  stinging 
retorts,  some  of  his  political  pamphlets  during  the  war,  and 
especially  his  sketch  of  the  Law  School  written  in  1870,  may  be 
regarded  as  masterpieces  in  that  style  of  composition.  Emory 
Washburn,  later  for  many  years  his  colleague  in  the  Law  School, 

thus  described  him : 

i 
i 

In  his  intercourse  with  others,  he  was  genial,  free,  and  affable, 
and  could  unbend  to  playfulness  and  familiarity  without  com- 
promising either  dignity  or  self  respect.  The  cheerfulness  and 
urbanity  with  which  he  always  greeted  his  friends  and  associates, 
added  much  to  the  pleasure  of  his  society  as  a  man  of  liberal  cul- 
ture and  broad  experience,  and  marked  him  out  as  a  man  whom  it 
was  a  privilege  to  know,  and  one  not  easy  to  forget. 

V 

Besides  his  thorough  absorption  in  his  profession,  Judge  Parker 
was  devoted  to  flowers  and  poetry,  and  also  extremely  fond  of 
society. 

Such  was  the  man  who  was  about  to  take  Judge  Story's  place. 

As  Judge  Parker  was  not  ready  to  take  up  his  Law  School 
duties  at  once,  George  Ticknor  Curtis  was  again  appointed,  No- 
vember 27,  1847,  Instructor  for  the  rest  of  the  term ;  and  Febru- 
ary 26,  1848,  Greenleaf  was  voted  $500  as  extra  compensation  for 
his  added  labors. 

At  the  March  term  of  1848,  Judge  Parker  assumed  his  new 
duties  (although  he  did  not  resign  as  Chief  Justice  until  June  25, 
1848).  Of  the  difficulty  of  these  duties,  he  himself  has  given 
a  most  graphic  description  ( i )  : 

i 

When  I  entered  upon  my  duties  I  found  that  the  topics  which 
formed  the  subject  matter  of  the  lectures  for  a  two  years'  course, 
had  been  divided  between  Professors  Greenleaf  and  Kent,  the 
year  before ;  that  Professor  Kent's  course  devolved  on  me ;  and 


CO     The  Law  School  of  Harvard  College,  by  Joel  Parker   (1871). 


ii8  HARVARD  LAW  SCHOOL. 

to  my  dismay,  Shipping  and  Admiralty  was  upon  my  list  for  that 
term. 

My  residence  in  the  interior  of  a  State  which  had  had  but  one 
port,  the  business  of  which  was  nearly  all  transacted  in  Boston, 
had  given  me  no  occasion  to  become  acquainted  with  that  branch 
of  the  law,  and  I  tried  in  vain  to  escape  by  an  exchange.  Pro- 
fessor Greenleaf's  answer  that  he  was  then  in  the  middle  of  his 
topics  for  the  course,  showed  that  he  could  not  comply  with  my 
request.  So,  frankly  stating  the  difficulty,  I  told  the  students  I 
would  study  the  text-book  with  them. 

But  there  was  another  difficulty,  of  a  more  general  character. 
It  was  understood  to  be  my  duty  to  deliver  a  certain  number  of 
lectures,  and  to  hold  a  certain  number  of  Moot  Courts,  beside 
taking  a  share  of  the  general  superintendence  and  management  of 
the  School.  I  had  listened  to  one  lecture  and  the  half  of  another, 
by  Professor  Greenleaf,  in  which  with  great  ease,  he  expounded 
the  principles  of  the  branch  of  the  law  then  under  consideration, 
occasionally  interspersing  questions  to  the  students.  How  far  he 
followed,  directly,  the  text-book  before  him,  was  not  apparent. 

The  practical  difficulty  which  met  me,  in  the  outset,  arose  in 
this  way.  I  was  to  deliver  a  lecture  upon  a  certain  topic,  and 
was  at  liberty  to  interpose  as  may  questions  as  I  pleased ;  but 
there  was  a  text-book,  twenty,  or  thirty,  or  more,  pages  of  which, 
furnished  the  foundation  of  the  lecture.  The  students  were  sup- 
posed to  have  read  this  portion  of  the  text,  in  anticipation  of  the 
lecture,  and  to  be  reasonably  acquainted  with  the  contents.  Con- 
fining myself  within  these  limits,  how  was  I  to  proceed?  It  was 
not  expedient  for  me  to  state  the  propositions  in  the  words  of  the 
text.  The  students  were  acquainted  with  them  already.  It  would 
be  of  little  advantage  to  vary  the  phraseology,  and  state  the  same 
principles  in  different  formulas.  If  the  text-book  was  a  good  one, 
how  was  I  to  deliver  a  lecture  without  a  "departure,"  which  law- 
yers well  know  is,  in  pleading,  obnoxious  to  a  special  demurrer. 
I  might  escape  the  dilemma  by  asking  questions,  but  that  was,  to 
that  extent,  turning  my  lecture  into  a  recitation  by  the  students. 
I  availed  myself  largely  of  my  privilege,  however,  and  having 
made  an  earnest  request  to  the  students  to  ask  me  any  questions 
on  their  part,  they  availed  themselves  of  their  privilege.  The 
School  was  at  that  time  a  very  strong  one,  many  of  the  students 
being  on  their  last  term.  And  so  we  had  for  sometime  a  lively 
interchange  of  interrogatories.  It  was  not  difficult  to  perceive 
that  the  students  were  disposed  to  try  the  new  Professor,  and  I 
enjoyed  it,  for,  having  been  fifteen  years  upon  the  Bench,  I  felt 
much  more  at  home  in  answering  questions,  than  I  did  in  deliver- 
ing law  lectures,  properly  so-called. 

In  this  way  I  gradually  found  my  way  out  of  my  embarrass- 
ments, having  come  to  the  conclusion  that  text-books  were  not 
the  perfection  of  law  lectures,  and  that  it  would  be  no  departure 
from  a  true  lecture  to  subject  the  book  to  a  rigid  criticism,  travers- 


TRANSITION  PERIOD.  119 

ing  its  propositions  if  they  were  unsound, — qualifying  them  if 
the  principle  were  stated  too  broadly, — suggesting  exceptions, 
where  they  existed, — amplifying  those  parts  where  brevity  had 
limited  the  statement  too  closely  (not,  perhaps,  a  very  common 
fault), — and  referring  largely,  in  some  instances,  to  contradictory 
decisions. 

An  illustration  occurs  to  me,  as  I  write,  perhaps  as  marked  as 
any  which  could  be  selected.  Coming  to  the  part  of  the  text-book 
on  Bailments,  which  treated  of  the  question  whether  a  common 
carrier  can  limit  his  liability,  by  a  notice  to  the  owner  of  the 
goods  that  he  will  be  answerable  only  for  negligence,  or  by  an 
agreement  with  the  owner  that  he  should  be  so  answerable  only, — 
the  suggestion  was  naturally  made  that  they  could  not  rely  upon 
the  text,  nor  upon  the  decisions  referred  to  in  the  notes,  because 
the  extraordinary  responsibility  of  the  carrier, — that  of  an  In- 
surer, with  certain  exceptions,— -did  not  arise  from  contract,  and 
therefore  was  not  governed  by  the  law  which  regulated  contracts 
in  general,  but  was,  as  they  had  been  calld  to  note,  imposed  upon 
him  by  the  policy  of  the  law,  for  the  reasons  stated, — that  the 
carrier  could  not  relieve  himself  from  this  responsibility  by  a 
notice  that  he  would  not  be  bound  by  the  rules  of  the  law,  even 
if  such  notice  were  given  directly  to  the  owner, — but  this  policy 
of  the  law  did  not  prevent  the  carrier  from  making  an  agreement 
with  the  owner,  for  a  more  limited  responsibility,  which  would 
be  binding  on  the  owner — nor  from  making  reasonable  rules  for 
the  government  of  his  business  in  relation  to  the  times  of  receiv- 
ing goods,  for  notice  of  contents  of  packages,  respecting  payment, 
etc.,  and  that  notice  of  such  rules  would  impose  upon  the  owner 
the  duty  of  complying  with  them, — adding  however,  that  the 
decisions  were  contradictory,  and  the  practitioner  must  carefully 
ascertain  what  were  the  doctrines  held  by  the  Courts  in  the  State 
where  he  resided,  and  govern  himself  accordingly. 

Recapitulating  the  principles  stated  in  the  text,  to  some  extent, 
where  they  appeared  to  be  sound,  in  order  to  cover  the  ground  by 
a  connected  discourse,  and  resorting  to  the  method  which  I  have 
stated  where  the  matter  appeared  to  call  for  it,  I  preferred,  where 
I  could  shape  them  to  advantage,  to  put  cases  illustrative  of  the 
subject  matter  for  the  answers  of  the  students,  instead  of  ques- 
tions directly  upon  the  text-books.  Suppose  a  client  should  state 
his  case  thus — ,  what  would  be  your  opinion,  or  what  would  you 
advise  him?  In  this  way  the  student  made  a  practical  application 
of  what  he  had  read  and  heard. 

Where  there  was  no  suitable  text-book,  which  was  thought  to 
be  a  fact  in  some  instances,  I  had,  of  course,  to  state  and  main- 
tain my  own  propositions. 

But  there  came,  in  time,  a  new  difficulty  respecting  questions 
of  any  sort, — and  that  was  in  obtaining  answers  to  them  without 
consuming  too  much  of  the  time  assigned  to  the  lecture, — arising 
mainly  from  a  fear,  on  the  part  of  the  student,  that  the  answer 


120  HARVARD  LAW  SCHOOL. 

might  be  wrong, — and  an  erroneous  answer,  made  in  the  face  of 
the  whole  School,  was  a  subject  of  dread.  There  would  doubt- 
less have  been  less  of  this  on  questions  directly  upon  the  text- 
book, although  in  that  case  the  facility  of  obtaining  answers  will 
naturally  vary  considerably  at  different  terms.  .  .  . 

In  June,  Professor  Greenleaf's  health  failed,  and  he  left  the 
School,  and  the  city,  to  seek  rest  and  repose  elsewhere,  tendering 
his  resignation,  to  take  effect  at  the  close  of  the  term.  He  had 
probably  a  premonition  of  that  disease  of  the  heart  which  sud- 
denly terminated  his  life,  in  1853. 

The  School  was  thus  left  wholly  on  my  hands  for  the  re- 
mainder of  the  term,  with  an  experience  of  something  more  than 
three  months  to  direct  me. 

Upon  a  new  division  of  topics  in  the  course  of  the  vacation, 
with  Professor  Parsons,  who  succeeded  Professor  Greenleaf,  I 
was  desirous  of  retaining  Shipping  on  my  list,  in  the  hope  that 
my  studies  on  that  subject,  during  the  last  term,  might  avail  me 
somewhat  in  another  course  of  lectures ;  but  the  answer  that  his 
practice  had  been  in  Boston,  and  that  branch  of  the  law  a  special- 
ty, could  not  but  be  admitted  as  a  conclusive  reason  why  I  should 
give  it  up ;  as  I  did  also  the  other  text-book  which  had  served  as 
the  basis  for  my  other  course  of  lectures ;  so  that  I  entered  on  my 
second  term  with  the  necessity  of  entire  new  preparation  so  far 
as  lectures  were  concerned. 

The  care  of  the  School  proved,  at  last,  too  great  for  Greenleaf, 
so  that  on  May  15,  1848,  he  tendered  his  resignation,  stating  that 
his  health  demanded  a  long  rest ;  and  it  was  accepted  by  the  Cor- 
poration, June  10,  in  a  vote  expressing  their  great  regret. (i) 

In  an  affectionate  letter  of  June  16,  the  law  students,  in 
token  of  their  regard,  requested  their  beloved  Professor  to  sit 
to  Healy  for  his  portrait,  to  be  placed  in  the  Lecture  Room.  (2) 

(1)  See  Harv.     Coll.  Papers,  2nd  Series,  Vol.  XV,  Letter  of  Green- 
leaf  of  May  15,  1848;  Vol.  XVI,  Letters  of  Greenleaf  of  May   15,   1848 
and  Mav  31,   1848. 

(2)  "Sir — The  members  of  Harvard  Law  School  have  received,  with 
regret,  the  announcement  that  impaired  health  has  compelled  you  to  re- 
sign the  professorial  chair  which  for  many  years  you  have  filled  with  dis- 
tinguished honor  to  yourself  and  usefulness  to  your  pupils. 

By  the  severance  of  a  connection  which  has  been  the  source  of  eminent 
advantage  and  gratification  to  us,  we  are  reminded,  that  of  more  than  a 
thousand  young  men  who,  within  the  past  fifteen  years,  have  been  attracted 
by  the  celebrity  which  genius  has  conferred  upon  this  institution,  we  are 
the  last  who  will  receive  your  instruction.  With  a  grateful  appreciation  of 
your  personal  kindness,  we  are  sensible  of  the  faithfulness,  ability,  and 
eloquence  which  have  marked  your  public  labors.  Nor  shall  we  remember 
with  less  satisfaction,  that  the  clearest  and  most  comprehensive  views  of 
jurisprudence  have  been  blended  with  those  more  important  moral  princi- 
ples entering  into  the  character  of  the  upright  lawyer,  so  happily  illustrated 
and  adorned  by  your  own  life. 

Leaving  the  institution,  you  carry  with  you  the  enthusiastic  regard  of 


TRANSITION  PERIOD.  121 

George  F.  Hoar,  a  student  in  the  School,  1847-49,  mentions  in 
his  autobiography :  "There  was  some  discussion  whether  it  (Green- 
leaf's  likeness)  should  be  a  bust  or  a  picture,  and  if  a  bust,  of 
what  should  be  the  material.  Daniel  S.  Curtis  said  'Better  make 
it  Verd  Antique.  That  means.  Old  Green.'  "(i) 

A  petition  to  have  the  portrait  hung  in  Dane  Hall  Lecture 
Room  was  granted  by  the  Corporation  on  July  3,  1848. (2)  ;  and 
the  Corporation  voted  on  the  same  day  "in  consideration  of  his 
long  and  faithful  services  as  Royall  and  Dane  Professor",  to  ap- 


your  pupils.  May  your  retirement  be  followed  by  renewed  health  and 
leisure,  as  well  for  your  own  happiness  as  for  the  completion  of  those  juri- 
dical labors  which  are  expected  with  the  liveliest  interest. 

The  members  of  the  Law  School  desire  that  the  hall  which  has  been 
so  attractive  from  your  presence,  should  be  adorned  with  your  portrait ; 
and  respectfully  request  that  at  your  convenience  you  will  grant  the  neces- 
sary opportunity. 

In  behalf  of  our  associates, 

Mellen  Chamberlain,  William   F   Miller, 

C.  Demond,  Thomas   Russell,    Jr., 

Edw.  Griffin  Parker,  Campbell   White, 

Committee. 

Greenleaf  replied,  June  17,  1848: 

Gentlemen : — I  have  received  your  communication  of  yesterday  with  the 
liveliest  emotion.  Among  the  painful  circumstances  attending  my  depar- 
ture from  these  seats  of  learning,  with  which  I  have  been  long  and  happily 
connected,  none  has  created  so  keen  a  pang  as  the  separation  from  my  be- 
loved fellow-students  and  pupils.  No  service  could  have  been  more  grate- 
ful to  me,  than  that  of  directing  the  remainder  of  your  professional  stud- 
ies ;  but  the  admonitions  of  physical  infirmity  forbid  it,  and  demand  a  sea- 
son of  repose  from  cares  already  too  exhausting. 

For  the  favorable  estimate  you  are  pleased  to  take  of  my  endeavors,  and 
the  sentiments  of  affectionate  regard  which  you  express,  as  well  as  for  the 
uniformly  kind  and  respectful  deportment  of  every  member  of  the  Law 
School  towards  me,  be  pleased  to  accept  my  warmest  thanks. 

In  my  future  studies  and  labors  for  the  advancement  of  our  favorite 
science,  I  shall  be  cheered  by  the  contemplation  of  this  period  of  my  life, 
in  which  I  have  been  so  delightfully  associated  with  kindred  spirits,  destined 
to  act  an  important  part  in  the  preservation  of  social  peace  and  happiness, 
and  in  the  conservation  of  our  institutions. 

May  you  reap  the  rich  reward  of  successful  efforts  in  this  glorious  cause. 

In  regard  to  the  request,  with  which  your  communication  closes,  as  it 
points  to  a  perpetual  memorial  of  the  sentiments  thus  mutually  enter- 
tained, I  have  neither  the  heart  nor  the  power  to  decline  a  compliance  with 
your  wishes. 

Most  affectionately  and  faithfully  yours, 

Simon  Greenleaf. 

(1)  Autobiography  of  Seventy  Years,  by  George  F.  Hoar,  Vol.  I. 

(2)  See  Harv.  Coll.  Papers,  2nd  Series,  Vol.  XVI,  Letters  of  Mellen 
Chamberlain,  June  26,  1848,  July  3,  1848. 

Greenleaf  himself  with  others  had  presented  to  the  Law  School,  in 
1847,  the  full  length  portrait  of  John  Marshall  which  now  hangs  in 
Austin  Hall. 


122  HARVARD  LAW  SCHOOL. 

point  Greenleaf  "Emeritus  Professor  of  Law". (i)  For  the  sec- 
ond time  within  a  year,  and  the  third  within  two  years,  the  Cor- 
poration was  called  upon  to  appoint  a  new  Professor.  And  of  all 
members  of  the  Bar,  the  one  to  whom  the  minds  of  the  Corpora- 
tion naturally  turned,  was  Rufus  Choate  as  the  most  eminent,  the 
most  brilliant,  and  the  most  widely  known.  (2) 


(1)  On  his  retirement  the  Western  Laiv  Journal,  Vol.  V,  (Sept.  1848) 
said: 

"We  regret  to  learn  that  Professor  Greenleaf  has  been  compelled  by 
ill  health  to  resign.  .  .  .  We  have  learned  to  look  to  him  as  one  of 
the  bright  and  pure  lights  of  American  Jurisprudence." 

The  next  year,  Greenleaf  was  appointed  one  of  the  Justices  of  the 
Massachusetts  Supreme  Court,  but  declined.  He  continued  actively  at 
work  in  his  profession  until  his  sudden  death  Oct.  6,  1853.  His  literary 
labors  during  the  latter  years  of  his  life  were  very  considerable.  In 
1846  he  published  the  second,  and  in  1852,  the  third,  volume  of  his 
Evidence.  His  invaluable  editon  of  Cruise's  Digest  of  the  Law  of  Real 
Property  with  Notes,  appeared  in  1850,  dedicated  "To  my  beloved  Pupils, 
these  labors  originally  undertaken  for  their  benefit  are  inscribed  by  their 
affectionate  friend." 

Among  his  other  legal  works  were  Remarks  on  the  Exclusion  of 
Atheists  as  Witnesses,  (1839)  ;  and  An  Examination  of  the  Testimony 
of  the  Four  Evangelists  by  the  Rules  of  Evidence  Administered  in  Courts 
of  Justice,  with  an  account  of  the  Trial  of  Jesus,  (1847). 

He  was  for  many  years  President  of  the  Massachusetts  Bible  Society. 
He  was  greatly  interested  in  the  establishment  of  African  Colonization 
and  he  prepared  the  original  constitution  adopted  by  the  infant  colony 
of  Liberia. 

At  a  meeting  of  the  Suffolk  Bar,  held  on  his  death,  the  following 
were  among  the  resolutions  presented  by  Charles  G.  Loring: 

"Resolved  that  by  his  laborious,  genial  and  successful  services  as 
teacher  of  the  law  in  the  school  at  Cambridge,  he  has  deserved  the 
gratitude  of  his  country;  for  there  he  has,  through  many  years  assisted 
in  the  training  up  of  the  youth  of  America,  drawn  thither  from  every 
State  by  his  fame  and  that  of  his  associates,  in  the  principles  of  jur- 
isprudence, in  elevated  views  of  professional  conduct,  to  exemplify  and 
diffuse  them  in  all  parts  of  our  land. 

Resolved,  that  while  we  remember,  with  a  melancholy  pleasure,  the 
peculiar  grace  and  dignity  of  voice,  person  and  manner  that  marked  our 
deceased  brother,  we  reflect  with  unmixed  satisfaction  upon  the  know- 
ledge that  these  were  but  the  signs  of  a  purity  and  grace  within,  of  a 
religious  discipline  of  many  years  and  of  no  common  vigor,  which  made 
his  sudden  death  one  from  which  he  needed  no  prayer  for  deliverance.'' 

(2)  See  Life  of  Rufus  Choate,  by  S.  G.  Brown  (1878). 

Edward  G.  Parker  in  his  Reminiscences  of  Rufus  Choate  (1860),  said: 
"In  1850  Professor  Greenleaf  told  the  writer  that  in  a  civil  or  a  crimi- 
nal case,  taking  law  and  fact  into  view  as  they  were  to  be  presented  in 
the  presence  of  a  jury,  he  considered   Choate,  to  use   his   exact   words, 
"more  terrible  than  Webster."  At  the  Bar  meeting  when  he  died,  one  of  his 
old    and   toughest    antagonists,    whom    I    have    often    seen    pitted    against 
him,  declared  that  though  he  had  known  J.  Mason,  S.  Dexter,    D.  Webster 
and  many  other  warrior  lawyers,  yet  he  thought  as  a  court     combatant 
Mr.  Choate  was  more  formidable  than  any  man  he  had  ever  known."  .  .  . 
John  T.  Morse,  in  the  Memorial  History  of  Boston,  Vol.  iy,  says : 
"Choate  was  the  magician  of  the  Bar.     His  power  over  a  jury  was  as 
masterful    as    his   method    of    obtaining   and    exercising    it    was    peculiar. 


TRANSITION  PERIOD.  123 

\Yhile  such  an  appointment  would  require  Choate  to  renounce 
his  immense  jury  practice,  it  was  felt  that  his  duties  at  the  School 
might  be  so  adjusted  as  to  allow  him  to  retain  his  practice  before 
the  Supreme  Court  in  Washington,  which  sat  from  early  in  De- 
cember to  the  middle  of  March  (the  Law  School  vacation  extend- 
ing from  the  middle  of  January  to  the  first  of  March). 

Choate  gave  the  matter  careful  consideration ;  but  as  it  was 
considered  imperative  that  he  should  reside  in  Cambridge  as  Dane 
Professor,  "on  account  of  the  influence  which  his  genial  manners, 
his  habitual  presence,  and  the  force  of  his  character,  would  be 
likely  to  exert  over  the  young  men",  he  finally  declined  the  offer. 

Although  Choate  refused  the  Law  School  Professorship,  his  in- 
fluence was  nevertheless  all-powerful  among  the  students.  When- 
ever he  was  to  argue  a  noted  case  in  Boston,  the  Law  School 
often  attended  the  trial  in  a  body ;  and  frequent  mention  is  made 
by  students  of  the  School  in  the  years  1840-1850  of  their  interest 
in  his  arguments  and  cross-examinations. (i) 

Two  famous  trials  in  Massachusetts  at  this  time  were  of  es- 
pecial interest  to  students — the  first  that  of  Albert  J.  Tirrell  for 
murder,  in  which  Choate  had  made  his  remarkable  and  successful 
defence,  based  on  the  theory  of  the  commission  of  the  murder 
during  an  attack  of  somnambulism.  The  other  was  noted  the 
Oliver  Smith  will  case,  in  1847,  m  which  Choate  and  Webster 
were  the  opposing  counsel.  The  case  turned  upon  the  point 
whether  one  of  the  subscribing  witnesses  was  insane  to  such  an 
extent  as  to  render  him  incompetent  to  witness  the  will. 

In  consequence  of  Greenleaf's  poor  health  the  entire  burden  of 
the  School  during  the  spring  had  been  on  Judge  Parker,  and  as  he 
now  had  serious  thoughts  of  resigning,  (2)  he  was  anxious  to 
have  the  Corporation  appoint,  as  either  his  colleague  or  his  suc- 


.  .  .  His  sway  over  his  educated  fellow  citizens  was  as  complete  as 
over  rustic  jurors.  His  tactics  in  trying  a  case  were  Napoleonic.  He 
left  no  precaution  uncared  for  to  secure  success,  and  then  fought  with 
an  intensity,  an  energy,  an  elan  which  seemed  to  render  such  precautions 
superfluous — not  till  the  sheriff  had  the  execution  in  hand  did  Mr.  Choate 
ever  regard  a  case  as  hopelessly  lost." 

(1)  A.  Oakey  Hall  in  Cross  Examination  as  an  Art,  Green  Bag,  Vol. 
V    (1804),  said: 

"I  often  and  in  company  with  such  classmates  as  Rutherford  B.  Hayes 
(L.  S.  1843-45)  and  George  Hoadly  (L.  S.  1844-45)  of  Ohio — listened 
to  and  studied,  in  connection  with  Greenleafs  fitting  chapter  in  his 
Evidence,  the  cross  examination  of  Rufus  Choate." 

(2)  See    interesting   letter    of    Pres.    Everett    to    Chief    Justice    Shaw, 
June   14,   1848.     Har-c.  Col!.  Arch.,  Letters  of  the  President. 


124  HARVARD  LAW  SCHOOL. 

cessor,  some  New  Hampshire  lawyer.  Ex-Professor  Kent  strong- 
ly urged  John  Duer  of  New  York.  George  P.  Marsh  of  Vermont 
was  also  suggested.  The  Corporation  gradually  sifted  the  candi- 
dates to  two — Theophilus  Parsons  of  Boston,  and  Samuel  Ames, 
a  distinguished  lawyer  of  Providence,  Rhode  Island,  (later  Chief 
Justice  of  that  State)  who  was  strongly  urged  by  Albert  C. 
Greene,  United  States  Senator  from  that  State,  Judge  Levi 
Woodbury,  Story's  successor  on  the  Supreme  Bench,  and  by 
many  Rhode  Island  lawyers.  ( I ) 

The  choice  finally  fell  on  Parsons,  chiefly  on  the  recommenda- 
tion of  Greenleaf,  and  of  Charles  G.  Loring  and  Chief  Justice 
Shaw  as  the  "Law  Lords"  of  the  Corporation  (2)  ;  and  he  was 
duly  elected  Dane  Professor,  July  15,  1848. 

THEOPHILUS  PARSONS. 

Theophilus  Parsons  was  born  March  17,  1797,  at  Newburyport, 
son  of  Theophilus  Parsons  (later  Chief  Justice),  being  at  the  time 
of  his  appointment  as  Professor,  fifty  years  old,  two  years  young- 
er than  Parker.  In  1800,  his  father  moved  to  Boston,  and  he 
entered  Harvard  College  in  1811,  when  fourteen  years  old,  gradu- 
ating in  the  class  of  1815,  with  Jared  Sparks,  John  A.  Lowell, 
Thaddeus  William  Harris  and  Dr.  John  Jeffries.  He  studied  law 
in  the  office  of  William  Prescott,  and  in  1817,  owing  to  ill  health, 
he  went  to  Europe,  where  he  was  the  guest  of  William  Pinkney, 
then  Minister  to  Russia.  Returning  to  Boston  he  opened  a  law 
office,  but  soon  moved  to  Taunton,  Mass.,  in  1822.  Besides  rep- 
resenting the  town  in  the  Legislature,  he  devoted  much  time  to 
literary  pursuits,  being  a  prominent  contributor  to  the  North 
American  Reinew.  This  magazine  was  then  the  only  substantial 


(1)  See  letter  of  Levi  Woodbury  to  Shaw,  July  18,  1848,  Harv.  Coll. 
Papers,  2nd  Series,  Vol.  XVI. 

(2)  See  letter  of  C.  G.  Loring  to  Shaw,  July   13,   1848,  Harv.  Coll. 
Papers,  2nd  Series,  Vol.  XVI. 

__  "Knowing,  however,  the  influences  of  personal  friendship  such  as  Mr. 
Greene  professes,  not  only  in  the  expression  of  opinions  but  in  the  hold- 
ing of  them,  and  particularly  when  called  upon  for  recommendation  of 
his  friend — I  cannot  feel  that  confidence  in  the  commendation  which  I 
have  in  the  familiar  and  certain  knowledge  we  have  of  one  who  has 
passed  his  life  in  the  midst  of  us,  and  about  whose  qualifications  we,  and 
especially  as  most  of  us  are  not  intimate  friends,  cannot  be  very  essen- 
tially in  error.  And  it  seems  to  me  the  safe  course  to  take  a  candidate 
of  whose  fitness  especially  we  feel  assured  from  personal  knowledge,  than 
to  resort  to  one  more  highly  commended,  but  of  whom  our  chief  informa- 
tion is  from  professed  personal  friends  at  a  distance  from  us." 


TRANSITION  PERIOD.  125 

and  well  known  quarterly  in  the  country,  and  being  under 
the  editorship  of  Professor  Edward  W.  Channing,  was  regarded 
as  the  organ  of  the  Harvard  literati.  In  1825,  Parsons  established 
and  edited  a  monthly  magazine — the  United  States  Literary 
Gazette.  He  was  also  joint  editor  of  the  Taunt  on  Free  Press 
with  Pliny  Merrick  (who  was  later  a  judge  of  the  Massachusetts 
Supreme  Court).  After  his  removal  to  Boston,  in  1827,  he  be- 
came associate  editor,  with  Judge  Willard  Phillips,  of  the  Galaxy. 
In  Boston,  he  at  once  acquired  a  very  lucrative  practice,  becom- 
ing one  of  the  leading  admiralty  and  insurance  lawyers  in  the  city, 
so  that  shortly  before  his  appointment  as  Professor,  it  is  said  that 
he  was  counsel  for  all  the  insurance  companies. 

Like  William  Kent,  Parsons  owed  his  appointment  quite  as 
much  to  his  engaging  personality  as  to  his  legal  ability.  Like 
Story,  he  was  famous  for  his  conversational  powers.  He  had  a 
vivid,  decided,  easy,  and  colloquial  manner  of  talking,  and  his 
fund  of  anecdote  and  reminiscence  was  a  constant  source  of  at- 
traction to  his  friends  and  to  his  students.  The  swiftness  of  his 
mind,  the  vivacity  and  the  intimacy  of  his  bearing  made  it  a  source 
of  delight  to  the  student  to  consult  with  him.  His  voice  was  clear 
and  sonorous;  his  delivery  smooth  and  unhesitating;  and  his  lec- 
tures were  never  dull,  for  he  gilded  the  points  and  rules  with 
stories  and  illustrations. 

Parsons  accepted  his  appointment,  July  18,  1848;  and,  as  Presi- 
dent Everett  stated  in  his  Annual  Report,  "gave  a  signal  proof  of 
his  zeal  and  interest  in  the  welfare  of  the  School  by  entering  with 
the  following  term,  and  consequently  with  a  few  week's  notice, 
upon  the  full  routine  of  laborious  duty."(i) 

The  policy  of  aiding  the  Professors  by  additional  Lecturers  was 
followed  out  by  the  appointment  on  July  29,  1848,  of  Franklin 
Dexter,  a  noted  lawyer  of  Boston  then  United  States  District 
Attorney,  as  Lecturer  "to  deliver  one  day  a  week,  lectures  on 


(i)  In  an  informal  letter  to  the  President  on  July  18,  Parsons  further 
showed  his  enthusiasm  for  his  new  task  by  urging  that  immediate  notice  of 
the  filling  of  the  Professorship  should  be  given  in  order  that  no  loss  of 
students  should  be  occasioned  to  the  School : 

"I  fear  that  much  mischief  will  result  from  the  delay  in  filling  the  va- 
cancy. Professor  Greenleaf,  Mr.  Stearns  and  others  think,  from  what 
they  have  seen  and  heard,  that  numbers  of  the  scholars  are  preparing  to 
go  elsewhere  who  might  be  recalled.  It  seems  to  me  important  that  our 
advertisements  should  be  inserted  as  soon,  and  circulated  as  widely,  as 
mav  be." 


126  HARVARD  LAW  SCHOOL. 

Constitutional  Law  and  such  other  subjects  as  he  may  select," 
at  a  salary  of  $1,500. (i) 

On  September  30,  1848,  Luther  S.  Cushing  was  appointed 
as  Lecturer  on  Civil  and  Parliamentary  Law.  (2) 

With  these  appointments  began  the  Third  Era  of  the  Law 
School  history.  (3) 

As  was  natural  during  this  period  of  change  and  uncertainty 
as  to  Professors,  the  number  of  students  in  1848-49  fell  off  large- 
ly, being  only  87  in  the  first  term  and  91  in  the  second  term. 

Among  the  students  about  this  time  who  achieved  distinction 
in  after  life  were  Francis  Parkman  (L.  S.  1844-46)  ;  Anson 
Burlingame  (L.  S.  1844-46)  ;  Leverett  Saltonstall  (L.  S.  1847- 
48)  ;  Mellen  Chamberlain  (L.  S.  1846-49),  later  Chief  Justice  of 
the  Municipal  Court  of  the  City  of  Boston;  Waldo  Colburn  (L. 
S.  1848-49),  later  Judge  of  the  Supreme  Court  of  Massachusetts; 
Horace  Gray  (L.  S.  1848-49),  later  Chief  Justice  of  the  Supreme 

(1)  Franklin  Dexter  was  the  son  of  Samuel  Dexter.     He  was  born 
in   1793,  graduated  from   Harvard  in   1812,  and  appointed  United  States 
District  Attorney  in  1841. 

(2)  Luther  Stearns  Cushing  was  nephew  of  Professor  Asahel  Stearns. 
He  was  born  in  1803.     He  had  been  associated  with  Charles  Sumner  and 
George  S.  Hillard  in  editing  the  American  Jurist  during  its  early  years. 
In  1832  he  was  chosen  Clerk  of  the  Massachusetts  House  of  Representa- 
tives holding  the  office  three  years.     In    1844,  he  was   appointed  Judge 
of  the  Court  of  Common  Pleas  and  in  1848,  Reporter  of  the  Massachusetts 
Supreme  Court.     In  1844,  ne  wrote  his  famous  Manual  of  Parliamentary 
Practice;    in    1837,   a    Treatise    on    Trustee   Process,   and    a    Treatise    on 
Remedial  Law;   in   1838,  he  translated  Savigny's  Law  of  Possession;   in 
1839,  Pothiei^s  Contracts  of  Sale,  and  in  1850,  Domat's  Civil  Law. 

(3)  Coincident  with  this  new  era  in  the  law  School  was  the  beginning 
of  a  new   regime  in   the   University   itself,   under   the   elaborate   revision 
of   the    "Statutes    and    Laws   of   the    University    at    Cambridge    with    the 
Orders   and   Regulations  of  the   Faculty,"   adopted   in    1848.     There   had 
been  no  revision  of  these   Statutes  and  Laws  since  that  of   1825    (with 
its  amendments  in  1826  and  1828). 

Under  vote  of  the  Corporation  of  Sept.  12,  1846,  President  Everett 
prepared  a  complete  revision  which  made  many  changes  and  additions 
in  the  constitution  and  administration  of  the  College  and  the  other  de- 
partments of  the  University ;  and  this  was  adopted  by  the  Corporation, 
June  10,  1848,  (concurred  in  by  the  Overseers,  Sept.  17,  1848).  For 
the  first  time  in  the  official  records,  the  Law  School  was  recognized  as 
a  formal  separate  department  of  the  University,  as  follows : 

"Section  n.  The  University  consists  of  the  Academical  Department, 
and  of  the  Divinity,  Law,  Medical  and  Scientific  Schools.  Each  is  under 
the  direction  of  its  appropriate  Faculty,  of  which  the  President  is  ex- 
officio  the  head. 

Section  12.  The  Senior  Professor  of  the  Professional  and  Scien- 
tific Schools  shall  act  as  the  head  of  the  Faculty  of  the  same,  and  shall 
preside  at  its  meetings  and  on  its  public  occasions,  unless  the  President 
shall  be  present  and  preside.  A  dean  may  also  be  appointed  by  the 
Faculty  of  each  professional  school  if  deemed  expedient  by  the  Corpora- 
tion." 


TRANSITION  PERIOD.  127 

Court  of  Massachusetts,  and  Justice  of  the  United  States  Supreme 
Court;  George  F.  Hoar  (L.  S.  1847-49)  later  United  States  Sen- 
ator from  Massachusetts(i)  ;  William  A.  Richardson  (L.  S. 
1845-46)  later  Chief  Justice  of  the  Court  of  Claims ;  William  C. 
Endicott,  (L.  S.  1849-50)  later  Secretary  of  War;  Augustus 
L.  Soule  (L.  S.  1848)  and  Charles  Allen  (L.  S.  1848-49)  later 
Judges  of  the  Massachusetts  Supreme  Court.  During  Professor 
Parson's  first  year,  there  was  some  complaint  among  the  students 
that  his  legal  knowledge  was  too  closely  confined  to  the  subjects 
of  his  law  practice,  Admiralty  and  Patents  ;(2)  but  this  soon  died 
out ;  and  the  Professors  themselves  denied  the  discouraging  state- 
ments that  had  prevailed,  regarding  the  condition  of  the  School, 
by  announcing  in  the  Report  in  October,  1849: 

The  condition  of  the  Law  College  is  perfectly  satisfactory.  The 
industry  of  the  students  in  the  Library,  their  thorough  investiga- 
tion of  the  Moot  Court  questions,  their  attendance  upon  the  lec- 
tures, and  their  intelligent  reception  of  all  the  instruction  we  can 
give  are  such  as  to  demand  our  highest  commendation. 

Francis  Bowen  writing  in  the  North  American  Review  in  1849, 


(1)  Of   his    Law    School    life,    Hoar    wrote   in   his   Autobiography   of 
Seventy    Years : 

"I  cannot  state  too  strongly  my  great  debt  to  it  and  to  Franklin  Dex- 
ter, Simon  Greenleaf,  Joel  Parker,  Theophilus  Parsons — The  Dane  Law 
School  was  then — a  most  admirable  place  for  learning  the  science  of  law 
and  preparing  for  its  practice.  The  youth  breathed  a  legal  atmosphere 
from  morning  till  night  all  the  year  round.  He  had  the  advantage  of 
most  admirable  instructors  and  the  resources  of  a  complete  library.  He 
listened  to  the  lectures,  he  studied  the  text-books,  he  was  drilled  in  the 
recitations,  he  had  practice  in  the  moot-courts  and  in  the  law  club.  He 
discussed  points  of  law  in  the  boarding  house  and  on  his  walks  with 
his  companions  and  to  understand  their  mental  processes  and  the  methods 
by  which  they  had  gained  their  success.  The  title  of  old  Nathan  Dane  to 
a  high  place  on  the  roll  of  his  country's  benefactors  and  to  the  gratitude 
of  the  profession  of  the  law  and  of  all  lovers  of  jurisprudence  through- 
out the  country,  cannot  be  disputed." 

(2)  See  Harv.  Coll.  Archives,  Letters  of  the  President. 

See  letter  from  S.  A.  Eliot  to  President  Sparks,  April  29,  1849,  Harv. 
Coll.  Papers,  Vol.  XVI.,  referring  to  an  anonymous  letter  directed  against 
Parsons,  with  threats  of  burning  him  in  effigy. 

"It  will  be  time  enough  to  take  so  serious  a  step  as  discharging 
a  professor  when  it  is  manifest  that  the  decline  of  the  school  is  owing 
to  him.  As  it  is  not  to  be  supposed  that  any  one  man  can  be  master  of 
all  branches  of  law  and  the  very  organization  of  the  school  implies  the 
necessity  of  having  different  professors  qualified1  in  different  depart- 
ments, I  am  not  in  the  least  troubled  by  criticisms  upon  the  defective 
knowledge  of  any  individual  in  one  branch.  .  .  .  Of  course  we  must 
not  be  hasty  but  observant ;  and  decide  after  sufficient  experience  whether 
there  is  any  permanent  cause  of  decline  in  the  school  of  whether  it  exper- 
iences only  those  fluctuations  of  popularity  and  reputation  to  which  all 
human  institutions  are  liable." 


128  HARVARD  LAW  SCHOOL. 

thus  spoke  of  the  condition  of  the  Law  School  and  of  the  Col- 
lege(i): 

The  Law  School  alone  flourishes  like  a  green  bay  tree ;  though 
we  wish  both  for  its  own  sake  and  that  of  the  College,  that  it 
also  could  be  removed  to  Boston  where  more  of  its  students  could 
live  at  home,  and  all  could  attend  the  courts. 

It  is  evident  we  think  that  the  College  proper  .  .  .  is  in 
danger  of  suffering  the  fall  of  the  Roman  maiden  Tarpeia  and 
being  crushed  by  the  weight  of  the  ornaments  of  brass  simulating 
gold  which  are  heaped  upon  it.  Notwithstanding  the  shower  of 
benefactions  that  has  seemed  recently  to  fall  into  its  lap  it  is  actu- 
ally poorer,  weaker  and  less  efficient  than  it  was  many  years  ago. 

And  President  Everett,  when  he  resigned  his  office,  Jan.  18, 
1849,  wrote  to  the  Law  Professors  and  Lecturers  in  reply  to  their 
letter  of  regret,  a  long  letter  expressing  his  belief  in  the  prosper- 
ous state  of  the  School,  in  which,  after  stating  that,  when  he  ac- 
cepted the  Presidency,  he  had  hoped  to  prepare  a  course  of  lec- 
tures in  International  Law  for  the  Law  School,  he  continued: 
"Much  as  the  School  owes  to  your  distinguished  predecessors  it 
is  not  the  language  of  compliment  but  of  justice  and  truth  to^say 
that  it  never  stood  on  a  firmer  basis  and  never  furnished  equal 
facilities  for  an  accomplished  education  in  every  branch  of  the 
legal  profession." (2) 

The  course  of  instruction  for  1848-49  was  as  follows:  Lec- 
tures by  Parker — First  Term,  Equity  Pleading  and  Agency; 
Second  Term,  Common  Law  Pleading,  Wills  and  Administra- 
tion, Equity  Jurisprudence;  lectures  by  Parsons — First  Term, 
Real  Property  and  Contracts ;  Second  Term,  Blackstone,  Kent, 
Real  Property  and  Contracts ;  lectures  by  F.  Dexter — Inter- 
national Law  and  Patents;  lectures  by  L.  S.  Cushing — Parlia- 
mentary, Civil  and  Criminal  law. 

In  addition,  as  stated  in  the  President's  Report : 

The  students  were  also  instructed  in  the  preparation  of  plead- 
ings and  other  legal  instruments  and  in  the  practice  of  their  pro- 
fession ;  and  the  vicinity  of  the  School  to  the  City  of  Boston  has 
given  favorable  opportunities  for  personal  observation  of  the 
practice  of  the  different  courts. 


(1)  Review  of  S.  A.  Eliot's  "Sketch  of  Harvard  College,"  by  Francis 
Bowen — North  Anter.  Rev.  Vol.  XV. 

(2)  Letters  of  the  President — Harv.  Coll.  Archives. 


TRANSITION   PERIOD.  129 

The  new  Professors  laid  especially  stress  upon  Moot  Courts, 
holding  two  each  week,  and  saying  in  their  Reports  ( I )  : 

The  Professors  entertain  no  doubt  of  the  utility  of  this  part  of 
the  instruction  of  the  School.  It  trains  the  student  for  the  actual 
practice  of  his  profession  better  than  any  other  exercise  and  the 
diligence  and  ability  exhibited  in  the  examination  of  the  authori- 
ties, the  preparation  of  the  briefs  and  in  the  arguments  at  the 
bar  would  have  done  credit  to  practitioners  of  considerable  ex- 
perience. 

Professor  Parsons'  interest  in  his  new  work  was  at  once  shown 
by  his  zealous  championing  of  Greenleaf's  views  on  many  sub- 
jects, especially  of  the  plan  for  the  appointment  of  a  third  Pro- 
fessor. Finally  the  Corporation  yielded ;  and  on  August  15,  1849, 
adopted  a  report  of  Chief  Justice  Shaw  and  B.  R.  Curtis  in  favor 
of  such  appointment,  by  passing  the  following  votes : 

Voted  that  some  suitable  person  learned  in  the  law  be  appoint- 
ed to  assist  with  the  two  permanent  Professors  in  the  lectures  and 
other  courses  of  instruction  to  students,  to  be  denominated  Uni- 
versity Professor  in  the  Law  School. 

That  this  arrangement  be  considered  as  made  for  one  year 
only. 

That  such  Professor  shall  not  be  required  to  reside  at  Cam- 
bridge, or  to  perform  any  of  the  duties  incident  to  such  residence 
nor  to  relinquish  the  practice  of  his  profession,  and  that  he  be 
allowed  and  paid  a  salary  of  $2,000  payable  quarterly. 

Frederick  H.  Allen  was  chosen  as  the  new  Professor (2)  and 
accepted  the  position,  September  10,  1849.  The  appointment  was 
made  necessary  by  the  declination  of  both  Luther  S.  Gushing  and 
Franklin  Dexter  to  continue  longer  as  Lecturers. 

Frederick  Hunt  Allen  was  a  prominent  lawyer  of  Bangor, 
Maine,  who  had  been  strongly  recommended  for  the  position  by 
many  Maine  lawyers  at  the  time  when  Joel  Parker  was  chosen 
to  the  Royall  Professorship  in  1847.  He  was  born  in  New 
Salem,  Mass.,  February  3,  1806,  son  of  Rev.  Samuel  C.  Allen.  He 
was  a  graduate  of  the  University  of  Vermont;  and  he  had  been  a 
Member  of  Congress  from  Maine  and  a  Judge  of  one  of  the 
State  District  Courts.  While  little  known  outside  of  his  State, 


(1)  See  Reports  of  April  27,   1849  and  October,  1849. 
See  also  President  Sparks'  24th  Annual  Report,   1848-49. 

(2)  The  vote  was  concurred  in  by  the  Overseers,  Feb.  7,   1850. 
9 


130  HARVARD  LAW  SCHOOL. 

he  was  considered  by  the  Harvard  Corporation  to  be  well  adapted 
to  fill  the  new  Professorship ;  for  in  person,  he  was  a  man  of 
amiable,  bland,  and  affable  manners ;  practical,  conservative,  and 
scientific  as  a  lawyer ;  a  fine  scholar,  and  one  of  the  most  popular 
of  the  State  Judges,  (i) 

Still  another  of  Greenleaf 's  suggestions,  urged  by  Parsons,  was 
adopted  by  the  Corporation  on  September  29,  1849,  in  voting  that : 

Prizes  not  exceeding  $200  in  the  whole  amount  for  any  one 
year  shall  be  annually  awarded  for  Dissertations  written  by  stu- 
dents of  the  Law  School  on  subjects  given  out  by  the  Law 
Faculty  according  to  such  a  plan  as  the  Faculty  may  adopt  and 
as  shall  be  approved  by  the  Corporation. 

That  the  merit  of  the  Dissertations  shall  be  adjudged  by  Com- 
mittees of  Counsellors  at  law  appointed  by  the  Law  Faculty. 

That  the  prizes  shall  be  awarded  at  the  close  of  each  academic 
year  by  the  Law  Faculty.  No  prize  to  be  awarded  if  no  Disserta- 
tion offered  shall  be  deemed  to  have  sufficient  merit. 

In  accordance  with  this  vote,  the  Catalogue  of  1849-50  con- 
tained the  announcement  that  prizes  would  be  awarded  of  $60 
for  the  best,  and  $50  for  the  .second  best  dissertation  written 
by  a  student  who  had  attended  the  Law  School  three  of  four 
terms  immediately  preceding  the  award;  also  prizes  of  $50  for 
the  best,  and  $40  for  the  second  best  dissertation  by  a  student 
who  had  attended  two  of  the  three  terms  next  preceding  the 
award.  The  subjects  announced  were,  On  the  Competency  of 
Witnesses  and  Stoppage  in  Transitu;  and  the  first  judges  were 
Hon.  William  Kent,  Chief  Justice  John  J.  Gilchrist  (L.  S.  1830- 
31)  of  New  Hampshire,  and  Peleg  W.  Chandler  (L.  S.  1835-36). 
The  first  prizes  were  awarded  to  D.  B.  Eaton  (L.  S.  1849-50)  and 
J.  C.  King  (L.  S.  1848-50)  on  the  first  subject,  and  Buel  Bushnell 
(L.  S.  1849-50)  and  George  Gorham  (L.  S.  1849-51)  on  the 
second  subject.  (2) 

In  the  year  1849-50,  a  Visiting  Committee,  composed  of  Judge 
Peleg  Sprague,  Professor  William  Kent,  Judge  Albert  H.  Nelson, 
Peleg  W.  Chandler,  and  Charles  Sumner,  reported  that  there  was 


(1)  See  letters  in  Harv.  Coll.  Papers,  2nd  Series,  Vol.  XVI. 

(2)  No  copies  of  prize  dissertations  are  now  to  be  found  in  the  Har- 
vard Law  School  Library,  although   Professor    Parsons   wrote  to    Presi- 
dent Walker,  Oct.  26,  1856,  (Harv.  Coll.  Papers,  2nd  Series,  Vol.  XXTII) 
"Judge  Shaw   suggested  some  two  or  three  years  since  that   we   should 
have    Prize    Essays.     The    thing   has   worked   well,    and    we    have    many 
essays  which  ought  to  be  kept  safely,  and  we  propose  to  keep  them." 


TRANSITION    PERIOD.  131 

"occasion  for  lively  satisfaction"  in  the  condition  of  the  Law 
School.  It  also  gave  the  following  description  of  the  system  of 
instruction  employed — a  system  which  remained  practically  un- 
changed for  the  next  twenty  years,  the  subjects  of  the  lectures 
only  being  varied. 

Lectures  had  been  given,  during  the  current  term,  by  Professor 
Parker,  upon  Equity  Pleadings,  Bailments,  and  Practice ;  by  Pro- 
fessor Parsons,  upon  Blackstone's  Commentaries,  the  Admiralty 
Jurisdiction,  Shipping,  Bills  and  Notes ;  and  by  Professor  Allen, 
upon  Real  Law  and  Domestic  Relations.  In  treating  most  of 
these  branches,  the  Professors  adopted  certain  text-books,  of 
acknowledged  authority, — to  which  the  attention  of  the  students 
was  especially  directed, — as  the  basis  of  their  remarks.  They  also 
examined  the  students  in  these  books,  and  in  the  leading  cases 
illustrating  the  subject. 

This  system  of  instruction,  which  has  been  continued  in  the 
School  since  its  earliest  foundation  with  substantial  uniformity, 
has  shown  itself  to  be  well  adapted  to  the  end  in  view.  It  is 
essential  that  the  student  should  be  directed  to  certain  text-books. 
These  he  must  study  carefully,  devotedly;  nor  can  he  properly 
omit  to  go  behind  these,  and  verify  them  by  the  decided  cases. 
No  day  should  pass  without  its  fulfilled  task  in  these  labors.  In 
this  way  he  will  be  prepared  for  the  examinations,  and  will  be 
enabled  to  appreciate  the  explanations  and  illustrations  of  the 
lecture-room,  throwing  light  upon  the  text,  and  showing  its  appli- 
cation to  practical  cases.  The  labors  of  the  student  will  qualify 
him  to  comprehend  the  labors  of  the  instructor.  Still  further, 
examinations  in  the  text-books,  accompanied  by  explanations 
and  illustrations,  help  to  interest  the  student  in  the  subject,  and  to 
bring  his  mind  directly  in  contact  with  the  mind  of  his  instructor. 

There  is  another  advantage  of  a  peculiar  character  afforded  by 
the  Law  School,  in  the  opportunity  of  kindly  and  instructive 
social  relations  among  the  students,  and  also  between  the  students 
and  their  instructors.  Young  men  engaged  in  similar  pursuits, 
are  professors  to  each  other.  The  daily  conversation  concerns 
their  common  studies,  and  contributes  some  new  impulse.  Mind 
meets  mind,  and  each  derives  strength  from  the  contact.  But 
the  instructor  is  also  at  hand.  In  the  lecture-room,  and  also  in 
private,  he  is  ready  to  afford  counsel  and  help.  The  students  are 
not  alone  in  their  labors.  They  find  an  assistant  at  every  step  of 
their  journey. (i) 

(i)  The  Report  of  the  Visiting  Committee,  Nov.  20,  1854,  stated: 
"All  the  students  are  now  admitted  to  all  the  lectures  and  to  familiar 
interviews  with  the  Professors  and  Lecturers  at  their  offices  for  advice 
on  obscure  points,  direction  to  the  best  sources  of  information  and  guid- 
ance to  the  wisest  methods  of  investigation.  This  unrestrained  inter- 
course is  encouraged  to  an  extent  without  precedent,  but  from  the  great 
variety  of  subjects  presented  to  the  Instructors  for  many  consecutive 
hours  their  physical  and  mental  energies  are  severely  taxed." 


132  HARVARD  LAW  SCHOOL. 

In  this  Report,  the  casual  reference  to  an  examination  of  stu- 
dents in  "leading  cases"  is  interesting  as  containing  the  germ  of 
the  Case  System  idea,  introduced  twenty  years  later.  Under 
Story  and  Greenleaf,  specific  cases  had  been  more  or  less  dis- 
cussed; but  the  presentation  of  cases  in  the  lecture  room  on 
which  the  opinion  of  the  student  should  be  obtained,  was  now 
introduced  as  a  regular  part  of  the  course,  described  by  President 
Sparks  in  his  Annual  Report  for  1849-50  (and  in  succeeding  An- 
nual Reports)  as  follows : 

The  number  of  Lectures  during  the  year  has  been  ten  each 
week,  accompanied  with  the  usual  examinations  upon  the  matter 
of  the  text-books,  and  the  presentation  of  cases  connected  there- 
with for  opinions  by  the  students.  The  application  of  the  subject- 
matter  of  the  lecture  in  this  mode  is  believed  to  be  even  more 
beneficial  and  satisfactory  than  direct  examinations,  which  test 
the  memory  of  the  student,  rather  than  aid  him  in  applying  what 
he  has  learned  to  actual  practice. 

At  the  close  of  this  year  (1849-50)  it  was  decided  by  President 
Sparks  and  Chief  Justice  Shaw  of  the  Corporation,  not  to  reap- 
point  Judge  Allen  as  University  Professor,  owing  to  the  insuf- 
ficiency of  the  Law  School  funds  and  the  partial  failure  of  Pro- 
fessor Allen  to  interest  the  students.  Parsons  was  very  anxious 
that  Judge  Gushing  should  now  be  appointed  University  Pro- 
fessor, with  the  understanding  that  he  should  do  half  work  and 
receive  half  pay,  (his  work  as  Reporter  of  the  Massachusetts 
Supreme  Court  taking  most  of  his  time).  The  Corporation,  how- 
ever, decided  simply  to  re-appoint  Gushing  as  a  Lecturer. 


Luther  S.  Gushing 


CHAPTER  XXXI. 
THE  ERA  OF  RAILROAD  AND  CORPORATION  LAW. 

The  years  1820-1830  were  the  era  of  canals  and  of  the  rise  of 
railroads,  (i) 

The  great  Middlesex  Canal  Corporation,  chartered  in  1793, 
had  been  in  successful  operation  in  Massachusetts  for  many 
years.  In  1825  came  the  completion  of  the  Erie  Canal  in  New 
York  and  the  beginning  of  the  Delaware  and  Hudson  Canal  in 
New  Jersey.  In  the  same  year,  1825,  however,  Governor  Levi 
Lincoln  of  Massachusetts  in  his  message  approving  a  canal  from 
Boston  to  the  Connecticut  River  suggested  that  he  had  "been  as- 
sured that  another  mode,  by  railways,  had  been  approved  of  in 
England"  and,  he  added,  ''how  far  they  would  be  affected  by  our 
severe  frosts  cannot  be  conjectured  yet."  He  also  stated  that 
whether  they  were  better  than  canals  remained  to  be  determined. 

The  first  railroad  operated  in  this  country,  the  Granite  Railway 
Corporation,  was  chartered  in  Massachusetts  in  1826  and  con- 
structed to  transport,  by  horse  power,  granite  for  the  new  Bunker 
Hill  Monument. 

In  the  same  year,  New  York  chartered  the  Mohawk  and 
Hudson  Railroad  Co. 

The  next  year,  1827,  Massachusetts  became  a  pioneer  in  the 
railway  agitation  by  appointing  a  Board  of  Commissioners  of  In- 
ternal Improvements  to  survey  a  route  for  a  railway  from  Boston 
to  the  Rhode  Island  boundary,  and  also  to  the  New  York  bound- 
ary. It  made  a  report  to  the  Legislature,  urging  that  the  roads 
when  built  should  be  operated  by  horse  power  5(2)  and  this  was 
the  power  for  which  all  the  early  railroads  were  designed. 


(1)  The  Journal  of  Law   (Phil.   1831),  Vol.  I,  contains  an  article  on 
the  Law  Relating  to  Masters  of  Ships  and  Common  Carriers  which  makes 
no  mention  of  railroads,  but  notes  the  "increasing  importance  of  Carriers 
by  Canal  Boats." 

(2)  A  contemporary  view  of  this  project  is  given  by  J.  T.  Bucking- 
ham in  his  Personal  Memoirs:  "Tt  was  in  the  summer  of  1827  that  the 
railroad  mania  began  to  manifest  itself.    The  idea  of  a  railroad  from  Bos- 
ton to  Albany  or  even  to  Springfield  was  met  with  ridicule  in  the  Legis- 
lature as  a  project  too  absurd  to  be  discussed  with  gravity. 

An  editorial  in  the  Boston  Courier  in  June  says  'a  project  which  every 


134  HARVARD  LAW  SCHOOL. 

But  in  October,  1826,  George  Stephenson  had  demonstrated  in 
England  the  success  of  his  steam  locomotive,  the  "Rocket"(i); 
and  the  introduction  of  steam  power  in  the  United  States  soon 
followed. 

July  4,  1828,  the  Baltimore  and  Ohio  Railroad  was  begun, 
fourteen  miles  being  opened  for  traffic  by  horse  power  in  1830, 
and  sixty-one  miles  by  steam  in  1831.  English  locomotives  drew 
trains  on  the  Delaware  and  Hudson  Canal  R.  R.  in  1829,  and  in 
December,  1830,  the  first  American  steam  locomotive  was  used 
on  the  South  Carolina  R.  R.  (2)  Between  1825  and  1830,  thirty- 
six  miles  of  railroad  had  been  built  in  South  Carolina,  New  Jer- 
sey and  Maryland.  In  Massachusetts,  though  a  number  of  rail- 
roads were  incorporated,  construction  was  not  begun  for  several 
years,  owing  to  the  discouraging  effect  produced  upon  investors 
of  capital  by  the  decision  in  the  famous  case  of  Charles  River 
Bridge  v.  Warren  Bridge  (7  Pick.  344),  in  1828.  This  case,  hold- 
ing that  the  grant  of  a  toll  bridge  charter  by  the  Legislature  did 
not  preclude  a  later  Legislature  from  chartering  a  free  bridge, 
located  so  close  to  the  former  bridge  as  to  deprive  it  of  all  profits, 
and  that  a  legislative  charter  did  not  grant  exclusive  rights  by 
implication,  proved  an  obstacle  in  the  path  of  railroad  promoters 
for  almost  nine  years  i.  e.  until  the  question  was  finally  settled  on 
appeal  by  the  Supreme  Court  of  the  United  States  in  1837. (3) 


one  knows,  who  knows  the  simplest  rules  in  arithmetic,  to  be  impractica- 
ble but  at  an  expense  little  less  than  the  market  value  of  the  whole  terri- 
tory of  Massachusetts,  and  which  if  practicable  every  person  of  common 
sense  knows  would  be  as  useless  as  a  railroad  from  Boston  to  the  Moon.' " 

(1)  A  full  description  of  this  trial  trip  appeared  in  the  Boston  Daily 
Advertiser,  November  23,  1826,  and  on  Nov.  25,  that  newspaper  stated  that 
"These  experiments  constitute  a  new  era  in  the  history  of  railroads.  They 
prove  conclusively  that  they  are  adapted  in  the  most  perfect  manner  for 
rapid  travelling,  whatever  power  may  be  used." 

(2)  An  article  on  Internal  Improvements  in  American  Quarterly  Re- 
view, Vol.  VIII,  in  December  1830,  said: 

"So  far  then  as  animal  power  is  concerned,  railroads  are  not  more  than 
half  as  advantageous  for  transportation  as  canals.  The  search  at  the 
present  moment  is  therefore  for  such  friction  saving  apparatus  as  will  place 
railroads  on  a  level  with  canals.  .  .  .  Upon  the  success  of  some  such 
friction  saving  apparatus  must  depend  the  great  question  whether  railroads 
can  compete  with  canals.  .  .  .  Railroads  however,  are  about  to  de- 
rive new  advantages  from  the  application  of  steam  to  locomotion." 

(3)  A  brief  resume  of  the  progress  of  railroad  building  during  these 
years  is  of  interest  in  its  bearing  both  on  the  legal  and  on  the  commercial 
and  political  history  of  the  country,  for  as  John  F.  Dillon  has  said :  "Mar- 
shall's judgments,  and  our  lines  of  railways  and  telegraph  have  done  more 
than  any  other  visible  agencies  in  making  and  keeping  us  one  united  na- 
tion." 

Twelve  miles,  from  Albany  to  Schenectady,  on  the  Mohawk  and  Hud- 


RAILROAD  LAW.  135 

The  advent  of  canals  and  railroads  sounded  the  death  knell  of 
the  turnpike  companies.  In  fact,  the  increasing  wealth  of  the 
towns  and  the  consequent  building  of  town  highways  had  already 
affected  the  prosperity  of  turnpikes ;  and  in  1827,  Massachusetts 
had  passed  an  act  allowing  turnpikes  to  be  laid  out  as  public 
highways,  by  the  town  authorities. (i)  In  turn,  however,  the  ruin 
of  the  canal  companies  was  brought  about  by  the  growth  of  the 
railroads,  and  most  of  them  either  failed  or  were  bought  up  by 
the  railroads  or  dragged  out  a  feeble  existence  with  no  profits.  (2) 

To  Chief  Justice  Shaw  of  Massachusetts  chiefly  belongs  the 
glory  of  laying  down  the  broad  principles  on  which  the  Law  of 
Railroads  was  framed  by  judicial  decision,  although  the  courts  of 


son  R.  R.  were  opened  in  1831.  The  Camden  and  Amboy  R.  R.  (char- 
tered in  New  Jersey  in  1830)  was  completed  in  1834  as  a  through  route 
from  New  York  to  Philadelphia.  In  Massachusetts,  the  State  in  which 
the  greatest  railroad  development  occurred,  the  Boston  and  Worcester  R. 
R.  (chartered  in  1831)  opened  nine  miles  for  travel  in  the  summer  of 
1833;  the  Boston  and  Providence  R.  R.  (chartered  in  1831)  was  opened  in 
June,  1834;  the  Boston  and  Lowell  R.  R.  (chartered  in  1830)  was  opened 
in  1835. 

From  1830  to  1848,  there  was  a  total  of  5,205  miles  of  railroad  in  the 
whole  United  States ;  but  the  year  1849  marked  the  beginning  of  the  great 
railroad  extensions,  and  by  1860,  30,135  miles  had  been  built. 

By  1840,  however,  it  was  possible  to  go  from  New  York  by  various  con- 
necting railroads  as  far  South  as  Roanoke,  No.  Car.,  and  as  early  as  1836, 
as  far  West  as  Utica,  N.  Y.  In  1842,  the  first  long  single  through  route 
was  completed,  that  from  Boston  to  Albany.  In  1850,  the  Erie  R.  R.  was 
opened  through  to  Lake  Erie;  and  in  1853,  came  the  first  important  rail- 
road consolidation,  when  eleven  lines  between  Albany  and  Buffalo  became 
the  N.  Y.  Central  R.  R.  By  1854,  the  Chicago  and  Rock  Island  R.  R. 
reached  the  Mississippi  River,  and  by  1859,  the  Hannibal  and  St.  Joseph 
had  penetrated  to  the  Missouri  River.  In  1850,  Chicago  had  only  one 
short  railroad.  In  1852,  it  received  railroad  connection  with  the  East  by 
the  completion  of  the  Michigan  Central  R.  R.  and  the  Michigan  Southern 
R.  R. ;  in  1851,  the  Pennsylvania  R.  R.  extended  its  system  to  Chicago; 
and  by  1860,  that  city  had  become  a  railroad  centre. 

As  early  as  1830  the  South  Carolina  Canal  and  Railroad  Co.  wrote 
to  Daniel  Webster  asking  him  to  present  a  petition  in  the  Senate  for 
Federal  aid  for  its  railroad :  "It  will  under  the  fostering  care  of 
the  General  Government  be  made  to  constitute  a  link  of  union  with  the 
rising  States  of  the  West,  attaching  them  more  strongly  through  the 
powerful  influences  of  interest  to  their  Atlantic  brethren." 

(1)  St.  1827,  c  77;  See  Andover  v.  Medford  Turnpike  Corp.,  18  Pick. 
486  (1836). 

Another  contributing  factor  to  the  lapse  of  turnpikes  was  the  deci- 
sion of  Chief  Justice  Shaw  in  1836,  that  turnpike  corporations  were  liable 
for  injuries  caused  even  by  latent  defects  in  their  roads,  and  irrespective  of 
negligence.  See  Yale  v.  Hampden  and  Berkshire  v.  Turnpike  Corp.,  18 
Pick.  351. 

(2)  See  Fonvard  r.  Hampshire  and  Hampden  Canal  Co.,  22  Pick.  465 
O839)  ;  Chase  v.  Sutton  Mfg.  Co.,  4  Cush.  182  (1849),  for  interesting  com- 
ments on  the  downfall  of  the  canals. 


136  HARVARD  LAW  SCHOOL. 

New  York  also  took  a  large  part  in  its  making.    As  Judge  Thomas 
strikingly  said(i)  : 

The  first  puff  of  the  engine  on  the  iron  road  announced  a  revo- 
lution in  the  law  of  bailments  and  of  common  carriers.  How 
much  Shaw's  wisdom  and  foresight  and  that  clear  comprehension 
of  the  principles  of  the  Common  Law,  which  enabled  him  to 
separate  the  rule  from  its  old  embodiments  and  to  mould  it  to 
new  exigencies,  contributed  to  build  up  this  law,  to  give  it  system 
and  harmony,  and  a  substraction  of  solid  sense,  is  well  known 
to  the  profession. 

No  more  superb  statement  of  the  manner  in  which  the  princi- 
ples of  the  Common  Law  are  to  be  adapted  to  new  conditions  of 
modern  life  has  ever  been  made  than  by  Shaw,  in  1854,  in  a  case 
involving  the  liability  of  railroads  as  warehousemen ;  and  a  quo- 
tation from  his  opinion  is  worthy  of  reproduction  at  length  (2)  : 

The  liability  of  carriers  of  goods  by  railroads,  the  grounds  and 
precise  extent  and  limits  of  their  responsibility,  are  coming  to  be 
subjects  of  great  interest  and  importance  to  the  community.  It 
is  a  new  mode  of  transportation,  in  some  respects  like  the  trans- 
portation of  ships,  lighters,  and  canal  boats  on  water,  and  in  others 
like  that  by  wagons  on  land ;  but  in  some  respects  it  differs  from 
both.  Though  the  practice  is  new,  the  law,  by  which  the  rights 
and  obligations  of  owners,  consignees,  and  of  the  carriers  them- 
selves, are  to  be  governed,  is  old  and  well  established.  It  is  one 
of  the  great  merits  and  advantages  of  the  Common  Law,  that, 
instead  of  a  series  of  detained  practical  rules,  established  by  posi- 
tive provisions,  and  adapted  to  the  precise  circumstances  of  par- 
ticular cases,  which  would  become  obsolete  and  fail,  when  the 
practice  and  course  of  business,  to  which  they  apply,  should 
cease  or  change,  the  common  law  consists  of  a  few  broad  and 
comprehensive  principles,  founded  on  reason,  natural  justice,  and 
enlightened  public  policy,  modified  and  adapted  to  the  circum- 
stances of  all  the  particular  cases  which  fall  within  it.  These 
general  principles  of  equity  and  policy  are  rendered  precise, 
specific,  and  adapted  to  practical  use,  by  usage,  which  is  the  proof 
of  their  general  fitness  and  common  convenience,  but  still  more 
by  judicial  exposition.  .  .  .  The  effect  of  this  expansive  char- 
acter of  the  Common  Law  is,  that  when  new  practices  spring  up, 
new  combinations  of  facts  arise,  and  cases  are  presented  for 
which  there  is  no  precedent  in  judicial  decision,  they  must  be 
governed  by  the  general  principle,  applicable  to  cases  most  nearly 


(1)  Memoir  of  Chief  Justice  Shaw,  by  Benjamin  F.  Thomas — Mass. 
Hist.  Soc.  Proc.,  Vol.  X  (1867-69). 

(2)  Norway  Plains  Co.  v.  B.  &  M    R.  R.,  i  Gray  263  (1854)- 


RAILROAD  LAW.  137 

analogous,  but  modified  and  adapted  to  new  circumstances,  by 
considerations  of  fitness  and  propriety,  of  reason  and  justice 
which  grow  out  of  those  circumstances. 

The  original  conception  of  a  railroad  was  that  of  an  immovable 
structure  graded  for  the  use  of  vehicles  moving  on  rails  provided 
for  the  purpose,  on  which  everyone  who  could  procure  the  proper 
carriage  and  apparatus  would  have  the  right  to  travel,  on  paying 
a  proper  toll  for  the  use  of  the  road  and  conforming  to  any  rea- 
sonable regulations. 

It  was  regarded  as  a  better  kind  of  turnpike.  Companies  chart- 
ered to  build  were  primarily  construction  companies  building  a 
road  for  the  use  of  others ;  and  on  these  principles  the  early  cases 
in  the  courts  were  decided. (i)  With  this  in  view,  the  early  rail- 
road charters  were  framed  practically  on  the  form  of  the  old 
turnpike  corporation  charters,  and  the  Revised  Statutes  of  Mas- 
sachusetts in  1836  included  them  all  together  in  a  chapter  headed 
"Of  Turnpikes,  Railroads  and  Canals."  It  was  not  until  later  that 
this  theory  was  changed  by  legislation. 

Chief  Justice  Shaw  thus  stated  the  early  theory (2)  : 

The  railroad  contemplated  by  our  earliest  legislation  upon  the 
subject  was  but  an  iron  turnpike,  the  use  of  which  was  to  be  paid 
for  by  tolls  collected  of  persons  travelling  upon  it.  It  apparently 
was  not  anticipated  that  the  railroad  companies  were  to  become 
themselves  the  carriers  of  goods  and  passengers. 

But  this  idea  or  policy  as  to  the  mode  in  which  railroads  were 

(1)  See  Lake  Superior  and  Miss.  R.  R.  v.  U.  S.,  93  U.  S.  401,  pp.  446, 
450. 

"It  is  undoubtedly  familiar  to  most  of  those  whose  recollection  goes  back 
to  that  period  that  railroads  were  generally  expected  to  be  public  high- 
ways, on  which  every  man  who  could  procure  the  proper  carriages  and 
apparatus  would  have  the  right  to  travel.  This  was  the  understanding  in 

England    where    they   originated Most    of    the    early    railroad 

charters  in  this  country  were  framed  upon  the  same  idea. — Thus  the  char- 
ter of  the  Mohawk  and  Hudson  R.  R.  Co.  (New  York,  1826)  ;  and  in  sub- 
sequent charters  granted  in  1828  and  succeeding  years,  the  intent  is  still 
more  plainly  expressed ;  .  .  .  So,  in  the  early  charters  granted  by 
Massachusetts  and  Maine,  as  late  as  1837,  New  Hampshire  as  late  as 

1844.  See  also  the  charter  of  the  Camden  and  Amboy  R.  R.  Co.  in  New 
Jersey  in  1830,  and  that  of  the  New  Jersey  R.  R.  in  1832,  the  Philadelphia 
and  Trenton  R.  R.  Co.  in  Pennsylvania  in  1832.     ...     In  Massachusetts, 
the  right  of  the  public  to  use  them  was  expressly  abrogated  by  the  Act  of 

1845.  .     .     .     The    general    course    of    legislation    demonstrates    the    fact 
that  in  the  early  history  of  railroads  it  was  quite  generally  supposed  that 
they  could  be  public  highways  in  fact  as  well  as  in  name.     The  railroads 
constructed    under    the    early   charters    are,    theoretically    at    least,    public 
highways  to-day." 

(2)  Com.  v.  Fitchburg  R.  R.,  12  Gray,  p.  187  (1858). 


138  HARVARD  LAW  SCHOOL. 

to  be  used  was  abandoned  before  any  of  our  railroads  were  fully 
constructed  and  put  into  operation.  In  the  act  incorporating  the 
Boston  and  Worcester  Railroad  Company,  (St.  1831,  c.  72), 
powers  were  given  to  the  corporation  for  the  transportation  of 
persons  and  goods,  and  for  the  purchase  of  engines  and  cars  for 
the  purpose.  These  provisions  were  inserted,  it  is  understood, 
under  the  advice  of  a  distinguished  member  of  our  profession 
deeply  interested  in  works  of  internal  improvement.  All  the  sub- 
sequent legislation  of  the  Commonwealth  has  assumed  and  pro- 
ceeded upon  the  ground  that  railroad  companies  were  to  be  the 
carriers  of  passengers  and  merchandise  upon  their  respective 
roads. 

And  in  another  case,  he  said(i)  • 

It  was  ascertained  very  early  after  railroads  were  brought  into 
use,  that  it  would  not  only  be  attended  with  great  inconvenience, 
but  also  with  imminent  hazard  and  danger  to  the  public,  to  allow 
different  and  independent  railroad  companies  to  run  their  cars 
on  the  same  track ;  and  that  it  was  indispensable  to  the  public 
safety  that  every  car  carried  upon  a  railroad  should  be  under 
the  control  and  direction  of  the  particular  company  by  which  it 
was  owned.  Accordingly  it  was  provided,  that  no  locomotive  en- 
gine or  other  motive  power  should  be  allowed  to  run  upon  any 
railroad  constructed  under  authority  of  this  commonwealth,  ex- 
cept such  as  should  belong  to  and  be  controlled  by  the  corporation 
owning  and  managing  such  road,  unless  by  their  consent ;  and  also 
that  every  railroad  corporation  owning  a  railroad  in  actual  use 
should  be  required,  at  reasonable  times  and  for  a  reasonable 
compensation,  to  draw  over  their  road  the  passengers,  merchan- 
dise and  cars  of  any  other  railroad  corporation  which  had  been 
duly  authorized  to  enter  upon  or  unite  their  road  with  it.  St. 
1845,  c-  I9l>  ss-  J>  2-  After  the  enactment  of  this  statute,  the 
only  right  of  the  proprietors  of  other  railroads  to  enter  or  run 
their  cars  upon  it  was  under  the  special  provisions  contained  in  it. 

As  an  illustration  of  the  recent  date  of  Railroad  Law,  it  may  be 
noted  that  the  first  railroad  case  decided  in  the  courts  was  in 
New  York  in  1835 — Cainden  and  Amboy  R.  R.  and  Transporta- 
tion Co.  v.  Burke  (13  Wend.  611) — in  which  David  Graham,  Jr., 
was  counsel  against  William  Anthon.  The  case  involved  the 
question  whether  the  company  "as  proprietor  of  a  line  of  steam- 
boats and  of  a  railroad  and  carriages  between  New  York  and 
Philadelphia"  was  liable  as  a  common  carrier  for  loss  of  "ward- 
robe, music  and  musical  instruments  of  the  plaintiff's  minor  son, 


(i)     Fitchburg  R.  R.  Co.  v.  Gage,  12  Gray,  p.  396  (1859). 


RAILROAD  LAW.  139 

Master  Burke,  a  stage  player,"  (in  the  words  of  the  declaration). 

The  earliest  cases  in  Connecticut  and  Pennsylvania  were  in 
1838,  in  Maine  in  1842,  in  Vermont  in  1847,  and  in  New  Hamp- 
shire in  1850. 

The  railroads  at  first  attempted  to  escape  from  the  rigid  Com- 
mon Law  carrier's  liability  by  issuing  general  notices  to  restrict 
their  obligations  for  loss ;  and  the  early  cases  were  much  con- 
cerned with  litigation  on  this  subject.  It  was  decided  in  New 
York  as  early  as  1838,  that  such  restriction  was  invalid — Hollistcr 
v.  Noivler  (19  Wend.  234),  and  the  United  States  Supreme  Court 
rendered  a  like  decision  in  1848,  in  Ne^v  Jersey  Steam  Nazigation 
Co.  v.  Merchants'  Bank  (6  How.  344),  in  a  case  involving  a 
steamboat  and  an  expressman. (i)  Later,  special  notice,  brought 
home  to  the  shipper  or  passenger,  was  held  to  exempt  the  railroad. 

Another  much  mooted  question  in  the  earliest  railroad  and 
steamboat  cases  was  whether  these  new  kinds  of  common  carriers 
were  obliged  to  make  delivery  of  freight  at  the  actual  residence  or 
place  of  business  of  the  consignee.  It  was  to  the  action  of  the 
courts  in  recognizing  usage  and  convenience  as  decisive  in  re- 
stricting the  railroad's  obligations  in  this  respect  that  the  busi- 
ness of  expressman  owes  its  origin,  about  1838. (2) 

Incidentally  it  is  to  be  noted  that  the  express  business  consti- 
tuted another  new  form  of  common  carrier ;  and  as  the  Law  Re- 
porter said,  in  1849,  m  a  review  of  Angell  on  Carriers,  "the  rights 
and  liberties  of  expressmen  have  become  most  important  subjects. 
At  one  time  they  deranged  our  whole  postal  system;  and  they 
have  yet  to  be  accurately  defined." 

No  case  arose  in  the  LInited  States  Supreme  Court  in  which 
a  railroad  was  a  party  until  1845 — Maryland  v.  Baltimore  and 
Ohio  R.  R.  (3  How.  534),  a  case  involving  a  stock  subscription; 
not  until  1852  was  the  first  railroad  accident  case  decided  in  that 
court — Philadelphia  and  Reading  R.  R.  v.  Derby  (14  How.  468). 

As  the  number  of  railroad  cases  decided  in  Massachusetts  prac- 
tically equalled  that  of  all  the  other  States  combined ;  and  as  the 
principles  laid  down  by  Chief  Justice  Shaw  practically  estab- 
lished the  Railroad  Law  for  the  country,  the  gradual  growth  of 


(1)  See  Law  of  Carriers'  Notices  in  Law  Reporter,  Vol.  XV  (1852). 

(2)  See  interesting  article  on  Power  of  Usage  and  Custom  to  alter  the 
Common  Law  by  John  F.  Dillon — Southern  Lazv  Reviciv,  Vol.  VII,  (1881- 
82).    See  also  Laiv  Reporter,  Vol.  XIV,  p.  134  (1851). 


140  HARVARD  LAW  SCHOOL. 

that  law  from  year  to  year  may  be  substantially  traced  in  the 
court  decisions  of  that  State. 

The  first  mention  of  the  term  "railroad"  in  the  Massachusetts 
Reports  was  In  Re  Wellington  (16  Pick.  87)  in  1834 — "rail- 
roads, a  recent  form  of  public  works."  The  first  case  involving 
a  railroad's  action  was  a  suit  against  the  city  of  Lowell — Currier 
v.  Lozvell  (16  Pick.  171),  in  1835,  for  damages  caused  by  the  con- 
struction of  its  road  by  the  Boston  and  Lowell  R.  R.  The  first 
case  in  which  a  railroad  was  a  party  was  decided  in  the  same  year 
(:835) — Boston  Water  Power  Co.  v.  Boston  and  Worcester  R.  R. 
Corp.  (16  Pick.  512;  23  Pick.  360),  in  which  Simon  Greenleaf, 
then  Professor  in  the  Harvard  Law  School,  Franklin  Dexter,  and 
Richard  Fletcher  were  counsel  for  the  railroad,  and  Jeremiah 
Mason  and  Qiarles  G.  Loring  for  the  plaintiff.  In  this  case,  the 
right  of  a  railroad  to  exercise  the  power  of  eminent  domain  was 
considered. 

The  first  tort  case  against  a  railroad  was  not  decided  until 
1839 — Lowell  v.  Boston  and  Lowell  R.  R.  (23  Pick.  24).  The 
first  ruling  that  a  railroad  was  a  public  work  and  that  its  property 
was  intended  for  public  use  was  in  Worcester  v.  Western  R.  R. 
(4  Mete.  564)  in  1842,  in  which  case  Pliny  Merrick  (later  Judge 
of  the  Massachusetts  Supreme  Court)  appeared  for  the  plaintiff, 
against  Emory  Washburn  (later  Judge  of  the  Court  of  Common 
Pleas,  Governor  of  Massachusetts,  and  Professor  in  the  Harvard 
Law  School)  for  the  defendant. 

In  this  same  year,  1842,  came  the  epoch-making  decision  of 
Chief  Justice  Shaw  exempting  employers  from  liability  to  their 
employees  for  negligence  of  fellow  employees — Farwell  v.  Wor- 
cester R.  R.  (4.  Mete.  49),  in  which  Charles  G.  Loring  appeared 
as  counsel  against  Richard  Fletcher  and  George  Morey. 

The  most  noteworthy  fact  relative  to  this  case  is  the  extent  to 
which  public  policy  and  convenience,  formed  the  grounds  of  the 
decision.  As  Shaw  said: 

This  is  an  action  of  new  impression  in  our  courts  and  involves 
a  principle  of  great  importance.  ...  It  is  an  argument 
against  such  an  action,  though  certainly  not  a  decisive  one  that  no 
such  action  has  before  been  maintained.  ...  If  we  look 
from  considerations  of  justice  to  those  of  policy  they  will  strongly 
lead  to  the  same  conclusions.  In  considering  the  rights  and 
obligations  arising  out  of  particular  relations  it  is  competent  for 
courts  of  justice  to  regard  considerations  of  policy  and  public 


RAILROAD  LAW.  141 

convenience  and  to  draw  from  them  such  rules  as  will  in  their 
practical  application  best  promote  the  safety  and  security  of  all 
parties  concerned. 

It  is  to  be  recalled  that  at  this  date  the  oldest  railroads  had 
been  constructed  hardly  ten  years,  and  they  were  by  no  means  an 
assured  financial  success. (i)  Undoubtedly  the  fact  that  a  con- 
trary decision  would  have  imposed  a  great  burden  on  these 
struggling  institutions  had  a  great  effect  in  influencing  the  de- 
cision reached  in  this  case. 

He  must  be  a  bold  man  who  would  undertake  to  tell  where  the 
doctrine  of  common  employment  ends  and  that  of  the  master's 
duty  to  be  present  begins  in  any  State  in  the  Union.  Much  of 
the  trouble  has  arisen  from  the  fact  that  judges  have  often  failed 
to  perceive  that  the  rule  first  laid  down  in  FarwelFs  case  was  es- 
tablished by  a  great  and  wise  legislator  as  a  species  of  protective 
tariff  for  the  encouragement  of  infant  railway  industries.  It  was 
a  harsh  but  a  plain  and  simple  rule.  Pressed  by  considerations 
of  humanity  and  public  policy  the  courts  began  step  by  step  to 
of  the  general  law  of  carriers. (3)  In  its  preface,  it  is  said : 

RAILROAD    LAW    BOOKS. 

The  first  law  book  which  treated  of  railroads  was  published  in 
1849 — Angell  on  Carriers — which  included  railroad  law  as  a  part 
of  the  general  law  of  carriers. (3)  In  its  preface,  it  is  said  : 


(1)  So  great  were  the  financial  obstacles  in  the  way  of  railroad  promo- 
ters, that  in  most  States  of  the  Union,  the  early  railroads  were  assisted  by 
legislative  and  municipal  grants.     It  was  the  lavish  expenditure  of  State 
money  and  issue  of  State  bonds  in  behalf  of  railroads,  which  hastened  the 
great   commercial   panic  of   1837,   and   the   subsequent   repudiation   of  the 
State  debts  by  various  States — Maryland,   Pennsylvania,  Illinois. 

In  Massachusetts,  the  Western  R.  R.  which  was  chartered  in  1833  to 
connect  Boston  with  the  West  through  Albany,  did  not  succeed  in  raising 
its  capital  of  $2,000,000  until  1835,  and  was  obliged  to  obtain  assistance  from 
the  State  of  Massachusetts  in  1838  through  a  State  subscription  to  stock. 

(2)  See  Future  of  our  Profession  by  John  M.  Shirley.  Aincr.  Law  Re- 
view, Vol.  XVII  (1883). 

In  Stevens  v.  Little  Miami  R.  R.  Co.  in  the  Hamilton  Court  of  Common 
Pleas  in  Ohio  in  1850,  the  court  states  that  "it  has  no  respect  for  Priest- 
Icy  t.  Fowler  nor  the  Fara-ell  case  .  .  .  Sound  public  policy  not  in 
favor." 

(3)  In  the  review  of  this  book  in  the  Laiv  Reporter,  in   1840,    (Vol. 
XII),  it  is  said: 

"The  law  of  carriers  especially  in  this  country  has  acquired  a  peculiar 
importance.  The  extent  of  the  American  confederacy,  that  perfect  system 
of  free  trade  which  is  kept  up  within  its  limits  and  the  increased  facilities 
of  traveling  and  transportation  contribute  to  this  result.  Under  these  cir- 
cumstances, it  is  remarkable  that  we  have  not  had  hitherto  any  work  de- 
voted exclusively  to  this  subject  except  two  English  treatises  one  by  Jer- 


142  HARVARD  LAW  SCHOOL. 

Since  the  commencement  of  the  present  century,  and  more 
especially  since  American  inventive  genius  has  rendered  the  ac- 
celerative  and  reliable  agency  of  steam  subservient  to  the  trans- 
portation of  commodities  and  of  travellers,  the  legal  duties,  lia- 
bilities and  rights  of  public  carriers  of  both  things  and  persons 
have  become  subjects  of  vastly  more  interest  and  greater  moment 
than  before  this  era  was  realized  or  even  generally  anticipated. 
.  .  .  So  instrumental  have  railroads  proved,  in  combination 
with  the  employment  of  the  agency  just  mentioned,  in  cementing 
in  this  connection  and  dependence  sections  of  the  country  far 
removed  from  each  other,  that  the  interest  of  the  mercantile  and 
traveling  public,  and  more  especially  of  the  legal  profession,  in 
the  direction  of  the  subject  of  the  following  work  has  attained  its 
acme. 

Six  years  later,  in  1855,  was  published  Judge  Milo  L.  Bennett's 
edition  of  an  English  work  Shelford's  Lazv  of  Railways — "the 
best  treatise  we  have  on  the  subject,"  said  the  American  Law 
Register  (Vol.  III). 

In  1857,  came  the  first  American  text-book  devoted  entirely  to 
the  subject — Edward  L.  Pierce's  Review  of  American  Railroad 
Law — "the  first  book  of  the  kind  upon  a  subject  of  increasing 
interest"  said  the  Law  Reporter  (Vol.  XX). 

In  1858,  appeared  Judge  Isaac  F.  Redfield's  book  on  Railways, 
in  the  preface  to  which  the  author  speaks  of  this  "law  appropri- 
ate to  a  department  of  enterprise  which  combines  the  grandest 
material  energies  of  the  age  and  unfolds  views  of  national  great- 
ness which  patriotism  delights  to  contemplate." (i) 


emy  published  in  1815,  one  by  Jones  (George  Frederic)  published  in  1827. 
The  only  other  sources  to  which  we  can  recur  for  an  exposition  of  this 
branch  of  the  law  are  the  leading  case  of  Coggs  v.  Bernard  (2  Lord  Raym. 
909)  by  which  Lord  Chief  Justice  Holt  incorporated  the  whole  of  the  civil 
law  on  the  subject  of  bailments  into  the  common  law  of  England  and  the 
two  treatises,  English  and  American,  on  the  Law  of  Bailments  the  first  by 
Sir  William  Jones  and  the  latter  by  the  late  Mr.  Justice  Story. 

.  .  .  .  In  Lord  Holt's  decision,  however,  and  in  each  of  the  treatises 
we  have  named,  the  law  of  carriers  is  considered  in  its  place  only  as  a 
part  of  the  comprehensive  law  of  bailments.  Besides,  so  great  have  been 
the  changes  in  the  mode  of  travelling  within  the  past  few  years  that  even 
the  recent  work  of  Mr.  Justice  Story  may  require  some  modification." 

(i)     In  a  review  of  this  book,  the  Laiv  Reporter  (Vol.  XX)  said: 

"To  many  of  the  profession  the  time  has  been  since  they  began  to 
practice  that  a  book  with  such  a  title  would  have  been  .a  matter  of  new 
and  curious  speculation.  ...  As  a  single  illustration  in  the  first  three 
volumes  of  the  U.  S.  Digest  bringing  down  the  decided  cases  to  near  1847 
there  were  only  two  cases  to  be  found  under  the  head  of  Railroad. 

The  two  next  volumes  contain  only  about  50  of  these  cases.  So  rapidly 
had  they  multiplied,  however,  that  the  volume  for  the  single  year  1855,  con- 
taining the  cases  in  48  volumes  of  Reports  embraces  as  many  under  the 


CORPORATION   LAW.  143 

CORPORATION*     LAW. 

Probably  no  economic  institution  was  more  affected  in  its 
growth,  and  no  branch  of  law  received  greater  impetus,  between 
the  years  1830  and  1850,  through  judicial  decisions,  than  that  of 
corporations ;  and  the  great  increase  in  number  and  influence  of 
corporations  was  largely  affected  by  the  doctrines  laid  down  by 
the  courts. 

In  the  earlier  years,  the  corporations  were  much  restricted  in 
their  growth  by  statutory  provisions  imposing  on  stockholders  the 
liability  of  partners.  Notwithstanding  these  restrictions,  as  early 
as  1826,  Kent  in  his  Commentaries ( i)  referred  to  "the  propensity 
in  modern  times  to  multiply  civil  corporations,  especially  in  the 
United  States,  where  they  have  increased  in  a  rapid  manner  and 
to  a  most  astonishing  extent.  The  various  acts  of  incorporation 

.  .  .  constitute  a  mighty  mass  of  charters  which  occupy  a 
large  part  of  the  volumes  of  the  statute  law.  The  demands  for 
acts  of  incorporation  is  continually  increasing  and  the  propensity 
is  the  more  striking  as  it  appears  to  be  incurable ;  and  we  seem  to 
have  no  moral  means  to  resist  it,  as  was  done  at  Rome  by  the  un- 
shaken determination  of  the  Emperor  Trojan." 

Of  the  policy  up  to  1826,  Kent  wrote(2)  : 

There  has  been  a  disposition  in  some  of  the  States  to  change 
in  an  essential  degree  the  character  of  incorporated  companies,  by 
making  the  members  personally  responsible  in  certain  events  and 
to  a  qualified  extent  for  the  debts  of  the  company.  This  is  in- 
tended as  a  check  to  improvident  conduct  and  abuse  and  to  add  to 
the  general  security  of  creditors;  and  the  policy  has  been  pur- 
sued to  a  moderate  and  reasonable  degree  only  in  Rhode  Island, 
New  York,  Maryland,  and  South  Carolina. 

In  New  York,  by  statute  of  1811,  stockholders  were  liable  to 
the  extent  of  their  stock  holdings  for  all  debts  of  the  corporation 
due  on  its  dissolution.  .  .  .  The  tendency  of  legislation  and 


head  of  Railroad  within  some  two  or  three  as  are  found  in  the  digests 
of  the  whole  650  volumes  just  mentioned. 

Xo  better  or  more  striking  illustration  of  the  flexibility  and  expansion 
of  the  common  law  to  new  circumstances  can  be  offered  than  the  readiness 
and  ease  with  which  it  supplies  the  rules  and  elements  of  jurisprudence  by 
which  the  multifarious  interests  and  relations  upon  the  subject  of  railways 
are  regulated.  And  what,  moreover,  ought  to  increase  our  confidence  in 
and  respect  for  the  common  law  is  the  general  uniformity  which  prevails 
in  the  decision  of  these  questions  as  they  have  arisen  from  time  to  time  in 
the  courts  of  some  30  different  and  independent  States." 

(1)  Kent's  Commentaries,  Vol.  IT,  p.  219-220  (ist  ed.  1827). 

(2)  Kent's  Commentaries,  Vol.  II,  p.  273,  note  b   (4th  ed.  1844). 


144  HARVARD  LAW  SCHOOL. 

judicial  decision  in  the  several  States  is  to  increase  the  personal 
responsibility  of  stockholders.  .  .  .  and  to  give  them  more 
and  more  the  character  of  partnerships  with  some  of  the  power 
and  privileges  of  corporations. 

Legislation  of  this  character  had  been  the  standing  policy  of 
Massachusetts — the  State  of  the  greatest  number  of  manufactur- 
ing corporations — from  1809  to  i827.(i)  But  in  his  message  to 
the  Legislature,  June  2,  1825,  Governor  Levi  Lincoln  recom- 
mended a  relaxation  of  this  policy,  saying : 

As  the  law  now  exists  it  is  to  be  feared  that  no  inconsiderable 
portion  of  advantage  which  would  result  from  the  employment 
of  capital  in  a  profitable  business  and  from  the  encouragement  of 
an  industrious  population  is  lost  to  the  Commonwealth. 

In  this  age  of  great  undertakings  and  of  strenuous  competition 
for  pre-eminence  in  local  advantages  and  influence,  it  is  surely 
wise  to  regard  with  care  the  permanent  resources  of  the  Common- 
wealth. These  will  be  found  especially  to  consist  in  the  profitable 
investment  at  home  of  the  monied  capital  of  our  wealthy  citizens, 
and  in  the  encouragement  of  employment  thereby  of  an  ingenious, 
industrious  and  virtuous  population. 

And  in  his  message  of  May  31,  1826,  he  said: 

The  number  of  corporations  already  created  and  the  immense 
amount  of  capital  employed  in  their  operation  must  prevent  the 
possibility  hereafter  of  a  successful  competition  with  them  in 
business  by  individual  means,  and  presents  the  single  inquiry 
whether  these  public  establishments  can  advantageously  be  mul- 
tiplied and  encouraged.  The  period  has  long  since  passed  in 
which  the  manufacturing  interest  could  be  regarded  as  unfavor- 
able to  commerce  or  inconsistent  with  the  prosperity  of  an 
agricultural  people. 

i 

"The  effect  has  been  to  drive  millions  of  capital  into  other 


(i)  See  remarks  of  Chief  Justice  Parker  in  Marcy  v.  Clark,  17  Mass. 
335,  in  1821 : 

"The  Legislature  have  thought  fit  and  we  think  wisely  to  subject  the 
property  of  all  members  of  these  corporations  to  a  liability  for  the  debts 
of  the  company.  By  this,  in  fact,  they  only  continue  the  principle  of  co- 
partnership in  operation ;  and  considering  the  multitude  of  corporations 
which  the  increasing  spirit  of  manufacturing  gives  rise  to,  regard  to  the 
interest  of  the  community  seems  to  require  that  the  individuals  whose 
property  thus  put  into  a  common  mass  enables  them  to  obtain  credit  uni- 
versally, should  not  shelter  themselves  from  a  responsibility  to  which  they 
would  be  liable  as  members  of  a  private  association. 

Since  this  statute  was  enacted  all  who  deal  with  such  companies  look 
for  their  security  to  the  individual  members  rather  than  to  this  joint 
stock." 


CORPORATION  LAW.  145 

states  for  investment." — "The  unreasonable  severity  of  the 
present  laws  is  a  subject  of  general  complaint,"  said  writers  in 
the  American  Jurist,  in  1829  and  1830. (i) 

By  an  act  passed  in  1830,  however,  Massachusetts  began  to 
adopt  a  more  liberal  policy  towards  stockholders.  At  the  same 
time,  nevertheless,  and  even  in  those  early  days  of  corporate  ac- 
tivity, there  was  generally  prevalent  a  fear  of  the  increase  of 
corporations,  an  example  of  which  may  be  found  in  the  Ameri- 
can Jurist,  in  October,  1830 : 

In  our  republics,  they  are  still  more  numerous ;  and  it  is  difficult 
to  set  bounds  to  the  general  desire  to  increase  them  ....  Unless 
restrained  by  legislative  enactment,  judicial  construction,  or  the 
good  sense  and  discretion  of  the  stockholders,  they  will  absorb 
the  greatest  part  of  the  substance  of  the  Commonwealth.  The 
extent  of  the  wealth  and  power  of  corporations  among  us  de- 
mands that  plain  and  clear  laws  should  be  declared  for  their  regu- 
lar restraint ;  for  without  a  salutary  and  strict  control  over  them 
everyone  may  be  compelled  to  adopt  the  fears  of  the  Roman 
Emperor  who  when  requested  to  institute  a  fire  company  of  150 
men  on  an  assurance  that  they  should  not  exceed  their  powers 
beyond  the  objects  of  the  association,  refused  the  grant,  observ- 
ing that  associations  had  greatly  disturbed  the  peace  of  cities  and 
whatever  name  he  gave  them  they  would  not  fail  to  be  mischiev- 
ous (2  Kent  217). 

The  doctrine  of  corporations  in  this  country,  on  account  of 
their  extent  as  well  as  the  defective  state  of  their  existence  and 
operation,  presents  a  most  interesting  field  of  inquiry  to  Ameri- 
can jurists,  and  demands  that  their  best  energies  should  be  ap- 
plied to  the  subject  and  that  corporations  may  be  protected  and 
wisely  directed  in  effecting  the  great  public  good  of  which  they 
are  capable  and  restrained  from  inflicting  the  public  and  private 
evils  within  their  powers  and  to  which  they  are  often  tempted  by 
their  own  views  of  interest.  .  .  .  The  courts  of  Massachu- 
setts have  made  many  decisions  from  which  it  must  be  inferred 
that  they  favor  the  doctrine  and  are  inclined  to  adopt  it  that 
corporations  have  no  powers  but  such  as  are  plainly  granted  in 
their  charters  or  are  clearly  necessary  to  effect  the  useful  pur- 
poses for  which  they  were  created.  Such  rules  of  construction 
can  hardly  be  considered  yet  as  established  anywhere  in  their  full 
extent. 

In  the  courts  above  referred  to  (N.  Y.,  U.  S.,  Mass.,),  the  Com- 


(2)  See  Manufacturing  Corporations;  Constitutionality  of  Corporators 
Liability  Laics,  by  Charles  G.  Loring  in  American  Jurist,  Vol.  II  (1829)  ; 
Vol.  IV  (i83o);"Vol.  V  (1832). 

See  also,  St.  1808,  c  65;  St.  1817,  c  183;  St.  1821,  c  38;  St.  1822,  c  638; 
St.  1826,  c  138;  St.  1829,  c  53;  and  Child  v.  Coffin  17  Mass.  64  (1820). 
10 


146  HARVARD  LAW  SCHOOL. 

mon  Law  incidents  to  corporations  are  sometimes  cited  with  ap- 
probation, and  in  other  State  courts  they  are  generally  referred  to 
without  qualification.  The  evident  utility  of  the  new  construction 
will  probably  soon  recommend  it  to  general  adoption. 

When  such  becomes  the  declared  law  of  the  States,  and  when  it 
shall  become  the  law  that  corporations  are  generally  liable  for 
the  acts  of  their  authorized  agents;  for  contracts  by  implication; 
for  ail  wrongs  and  injuries  that  they  are  capable  of  inflicting; 
and  for  all  injurious  omissions  to  perform  their  duties,  there  will 
be  no  longer  need  of  statutes  of  mortmain  and  wills ;  or  constitu- 
tional impediments  or  restraints  to  the  multiplication  of  corporate 
charters.  It  might  still,  however,  be  wise  for  Legislatures  to  re- 
serve more  direct  control  over  corporations  of  future  creation 
than  they  are  accustomed  to  do  in  most  of  the  States.  .  .  . 

When  these  doctrines  shall  become  fully  established  and  Legis- 
latures grow  careful  to  reserve  visitorial  powers  in  granting 
charters  for  civil  corporations,  the  fear  and  apprehension  of  cor- 
porations now  existing  and  too  justly  forced  by  experience  into 
the  public  mind,  will  probably  subside.  Such  fears  have  induced 
the  Legislatures  in  some  States  to  adopt  measures  which  should 
and  to  a  great  extent  do  deter  the  public  from  encountering  the 
perils  resulting  from  the  ownership  of  corporate  stocks.(i) 

After  1827,  the  more  liberal  legislation  limiting  stockholders' 
liability  promoted  the  turning  of  partnerships  into  trading  and 
manufacturing  corporations.  The  protective  tariffs  and  the  in- 
creasing production  of  coal  were  a  great  factor  in  the  increase  of 
these  corporations.  The  expiration  of  the  charter  of  the  United 
States  Bank  in  1836  caused  large  numbers  of  State  and  private 
banks  to  be  incorporated.  Life  insurance  corporations  were  just 
coming  into  existence.  Fire  insurance  corporations  were  being 
much  more  extensively  developed.  The  era  of  railroad  corpora- 
tions began  in  1830. 


(i)Governor  Lincoln  himself,  in  vetoing  a  bill  to  authorize  the  incorpor- 
ation of  the  Mozart  Association  in  Salem,  with  power  to  hold  real  estate 
to  the  value  of  $10,000,  said  Feb.  16,  1827 : 

"The  course  of  legislation  for  several  of  the  last  years  has  a  tendency  to 
absorb  individual  property  in  the  capital  of  corporations  and  thereby  to 
destroy  its  future  divisibility  and  voluntary  disposition  to  an  extent  I  be- 
lieve which  is  hardly  apprehended  by  the  community.  It  may  well  deserve 
regard  to  what  consequences  an  unrestricted  indulgence  in  this  policy  may 
lead.  .  .  .  The  worst  evils  of  a  monopoly  of  wealth  and  possessions  in 
corporations  on  the  one  hand  and  of  consequent  poverty  and  dependence  on 
individuals  on  the  other  will  commence  and  be  aggravated,  until  by  the 
intervention  of  statutes  of  mortmain  and  other  violent  legal  enactments, 
or  by  popular  excitement  and  revolution,  the  grievous  and  intolerable  pres- 
sure of  corporate  power  over  individual  possession  shall  be  removed  and 
property  again  be  restored  to  those  who  by  the  laws  of  nature  had  the 
original  right  to  its  enjoyment." 


CORPORATION   LAW.  147 

By  1831,  the.  body  of  Corporation  Law  had  become  so  large  as 
to  demand  a  text  book,  and  in  that  year  appeared  the  first  Ameri- 
can and  the  first  modern  book  on  the  subject — Angell  and  Ames 
on  Corporations.  In  the  preface,  the  authors  stated: 

The  inconvenience  experienced  from  the  want  of  a  work  of  ref- 
erence upon  the  legal  rights  and  obligations  which  grow  out  of 
the  relations  between  a  body  corporate  and  the  public  and  be- 
tween a  body  corporate  and  its  members  has  in  this  country  long 
been  a  subject  of  complaint. 

And  they  cite  a  comment  by  Judge  Roger  in  Bushel  v.  Com- 
memvealth  Ins.  Co.  (15  Serg.  and  Rawle  176)  : 

With  the  multiplication  of  corporations  which  has  and  is  taking 
place  to  an  almost  indefinite  extent,  there  has  been  a  correspond- 
ing change  in  the  law  respecting  them.  .  .  .  This  change  of 
law  has  arisen  from  that  silent  legislation  by  the  people  them- 
selves which  is  continually  going  on  in  a  country  such  as  ours,  the 
more  wholesome  because  it  is  gradual  and  wisely  adapted  to  the 
peculiar  situation,  wants,  and  habits  of  our  citizens. (i) 

It  is  to  be  noted  that,  at  this  time,  most  of  these  corporations 
were  created  by  special  charters ;  for  general  incorporation  acts 
existed  in  but  few  States.  (2)  The  first  general  statute  had  been 
enacted  in  Pennsylvania  in  1791,  authorizing  incorporation  gen- 
erally of  literary,  charitable,  and  religious  associations.  In  New 
York,  a  general  act  for  public  libraries  was  passed  in  1796,  and 
for  business  corporations  in  1811;  but  by  the  constitution  of 
1821,  the  people  of  the  State,  alarmed  at  the  tremendous  increase 
of  corporations,  provided  that  no  charter  should  be  granted  ex- 
cept by  a  two-thirds  vote  of  each  branch  of  the  Legislature. 
Georgia  enacted  general  manufacturing  corporation  acts  in  1843 
and  1845.  New  York  enacted  the  broadest  general  corporation 
act  in  the  country  in  1848;  and  in  1849,  Pennsylvania  enacted  a 
general  business  corporation  act.  Massachusetts  had  no  general 
manufacturing  or  banking  corporation  acts  until  as  late  as  1851. 
As  the  Law  Reporter  stated  in  that  year  (Vol.  XIV)  : 

(i)  Chief  Justice  Shaw  in  Tisdale  v.  Harris  (20  Pick,  i)  in  1838  hold- 
ing stock  certificates  within  the  Statute  of  Frauds  said  : 

"These  companies  have  become  so  numerous,  so  larpe  an  amount  of 
the  property  of  the  community  is  invested  in  them  and  as  the  ordinary 
indicia  of  property  arising  from  delivery  and  possession  ca  •!  take  place, 
there  seems  to  be  peculiar  reasons  for  extending  the  pro  isions  of  the 
statute  to  them." 

(2) See  Address  of  Henry  Hitchcock  in  Amcr.  Bar  Ass.  P  •->•:.  Vol.  X. 


148  HARVARD  LAW  SCHOOL. 

In  Massachusetts,  similar  provision  existed  before  in  regard  to 
parishes  and  religious  societies,  wharves  and  some  other  real 
estate  ownerships,  lyceums  and  cemetaries,  and  some  other  speci- 
fied cases ;  but  it  was  taken  for  granted  that  such  provision  could 
not  be  safely  applied,  as  it  had  been  done  in  other  States,  to  cor- 
porations generally,  and  especially  those  of  a  trading  or  business 
nature.  The  Legislature  has  overstepped  this  line  in  the  case 
of  manufacturing  companies  and  banks,  and  we  think  wisely.  We 
believe.  .  .  .  we  shall  see  laws  passed  hereafter  to  meet  the 
analogous  cases  of  insurance  and  railroad  corporations.  ( i ) 

A  general  insurance  act  was  not  passed  in  Massachusetts  until 
1856;  a  general  railroad  act,  until  1872;  and  a  street  railway  act, 
until  1874. 

The  influence  of  the  decision  in  the  Dartmouth  College  Case  on 
Corporation  Law  during  this  period  was  very  pronounced.  That 
case,  deciding  that  a  corporate  charter  was  a  contract  and  within 
the  protection  of  the  United  States  Constitution,  gave  a  great 
impetus  to  the  creation  of  corporations ;  and  so  many  valuable 
rights  were  irrevocably  granted  away  in  corporate  charters  by 
the  State  Legislatures,  that  a  movement  began  to  change  this  con- 
dition of  affairs.  Acting  on  a  precedent  adopted  on  the  sugges- 
tion of  Chief  Justice  Parsons,  as  early  as  1809,  in  an  act  incorpor- 
ating manufacturing  companies,  the  Legislature  of  Massachusetts 
in  1830  passed  a  general  statute  relating  to  all  corporations,  and 
making  every  charter  thereafter  granted  subject  to  the  right 
of  the  Legislature  to  alter,  amend  or  repeal.  New  York 
had  already  inserted  a  similar  clause  in  its  constitution  of  1826. 
Connecticut  and  other  States  had  been  accustomed  for  several 
years  to  append  such  clauses  to  all  special  corporate  charters. 
Wisconsin  followed  Massachusetts  in  1848,  and  California  in 
1849.  Many  States,  however,  still  hesitated,  especially  those  that 
were  undeveloped  and  had  the  greatest  need  for  corporations.  (2) 

(1)  The  number  of  special  charters  to  manufacturing  corporations  in 
Massachusetts  is  stated  in  the  Law  Reporter,  Vol.  XXII,  in  1859,  as  fol- 
lows: between  1780  and  1809,  9;  1800-1817,  100;  1780-1835,  500;  1835-1859, 
about  30  per  annum. 

(2)  Rise  and  Probable  Decline   of  Private   Corporations,  by  Andrew 
Allison,  Amer.  Bar  Ass.  Proc.,  Vol.  IV   (1881). 

It  is  interesting  to  note  that  the  fear  of  corporations  continued  extreme- 
ly prevalent.  It  was  well  stated  by  a  Massachusetts  lawyer  of  prominence, 
Robert  Rantoul,  Jr.,  in  an  argument,  made  in  1835  in  the  Massachusetts 
Legislature,  in  protest  against  a  special  charter  to  an  iron  and  steel  com- 
pany with  .a  capital  as  large  at  $500,000: 

"The  evil  of  incorporation  had  become  so  great  that  the  justice  of  the 
opinions  expressed  in  Gov.  Lincoln's  message  (vetoing  the  incorpora- 


CORPORATION  LAW.  149 

In  1838,  a  question  of  corporate  law  arose,  the  decision  of 
which  was  likely  to  affect  the  course  of  commercial  dealings  in 
the  United  States  to  a  greater  degree  than  any  decision  since  that 
in  the  great  steamboat  case  of  Gibbons  v.  Ogden,  in  1824. 

In  the  United  States  Circuit  Court  in  Alabama,  a  railroad 
company  incorporated  in  Louisiana  had  brought  suit  on  a  bill 
of  exchange  made  and  discounted  by  it  in  Alabama.  The  ques- 
tion had  thus  been  presented  of  the  power  of  a  corporation  to 
make  and  sue  on  a  contract,  signed  outside  the  State  in  which  it 
was  chartered.  To  the  surprise  and  consternation  of  the  business 
interests  of  the  country,  Mr.  Justice  McKinley  of  the  United 
States  Supreme  Court,  sitting  in  the  Circuit  Court,  decided  that  a 
corporation  had  no  power  to  do  business  in  a  State  other  than  that 
in  which  it  was  incorporated.  The  effect  produced  by  this  deci- 
sion is  graphically  described  by  Judge  Story  in  a  letter  to  Charles 
Sumner,  June  17,  1838(1)  : 

My  brother  McKinley  has  recently  made  a  most  sweeping  de- 
cision in  the  Circuit  Court  in  Alabama  which  has  frightened  half 
the  lawyers  and  all  the  corporations  of  the  country  out  of  their 
proprieties.  He  has  held  that  a  corporation  created  in  one  State 
has  no  power  to  contract  (or,  it  would  seem,  even  to  act)  in  any 
other  State  either  directly  or  by  an  agent.  So  banks,  insurance 
companies,  manufacturing  companies  etc.,  have  no  capacity  to 
take  or  discount  notes  in  another  State  or  to  underwrite  policies 


tion  of  the  Mozart  Society)  was  immediately  acknowledged  by  the  Legis- 
lature. This  evil  has  increased ;  it  is  infinitely  greater  now  than  it  was 
in  1827;  and  by  and  by  the  subject  will  become  the  first  in  the  eye  of  the 
people.  The  people  will  stand  up  against  corporations.  They  will  say,  "we 
will  see  whether  the  citizens  of  the  Commonwealth  are  to  govern  them- 
selves or  are  to  be  governd  by  corporations".  ...  A  great  party  will 
grow  up  against  them,  and  then  corporations  must  look  to  themselves. 

.  .  .  Agrarianism,  levelling,  Jacobinism,  war  of  the  poor  against  the 
rich — these  are  the  cries  against  me.  This  is  stale  trash.  ...  In  all 
the  earliest  manufacturing  corporations  the  stockholders  were  mostly  lead- 
ing federalists,  and  the  whole  power  of  the  corporation  was  federal  power." 

Two  years  later,  in  1837,  the  same  apprehension  as  to  monopolies  and 
wealthy  corporations  appeared  judicially  in  the  opinion  given  by  Judge 
Marcus  Morton  of  the  Massachusetts  Supreme  Court  in  Alger  v.  Thatcher 
(19  Pick.  51.)  This  was  the  first  well  considered  case  on  restraint  of 
trade  decided  in  the  United  States ;  and  Judge  Morton  said : 

"The  law  ...  is  found  on  great  principles  of  public  policy  and  car- 
ries out  our  constitutional  prohibition  of  monopolies  and  exclusive  privi- 
leges .  .  .  Such  contracts  .  .  .  prevent  competition  and  enhance 
prices.  They  expose  the  public  to  all  the  evils  of  monopoly.  And  this  es- 
pecially is  applicable  to  wealthy  companies  and  large  corporations  who 
have  the  means  unless  restrained  by  law  to  exclude  rivalry,  monopolize 
business  and  engross  the  market." 

(i)     Unpublished  letter  in  Sumner  Papers  in  Harv.  Coll.  Library. 


150  HARVARD  LAW  SCHOOL. 

or  to  buy  or  sell  goods.  The  cases  in  which  he  has  made  these 
decisions  have  gone  to  the  Supreme  Court.  What  say  you  to 
all  this?  So  we  go! 

As  the  Bank  of  the  United  States  and  other  moneyed  corpora- 
tions had,  for  many  years,  been  in  the  habit  of  discounting  bills  in 
States  throughout  the  country,  this  decision  opened  the  door  to 
widespread  repudiation  of  their  obligations  by  debtors  whose  con- 
tracts were  made  in  States  other  than  the  chartering  State.  These 
debtors  at  once  took  advantage  of  the  defence  thus  offered  to 
them.  Manufacturing  and  trading  corporations  hesitated  to  con- 
tinue to  do  business  in  outside  States.  The  business  of  the  fire 
and  life  insurance  companies  which  were  just  being  organized  for 
the  first  time  to  any  great  extent,  was  curtailed.  General  com- 
mercial confusion  ensued.  The  disastrous  result  of  this  decision 
was  also  enhanced  by  its  being  rendered  at  a  time  when  the  effects 
of  the  great  financial  panic  of  1837  were  still  being  severely  felt. 

Ex-Chancellor  Kent  and  other  eminent  lawyers,  being  con- 
sulted, gave  their  opinions  against  the  doctrine  laid  down  by 
Judge  McKinley.  ( i )  Steps  were  at  once  taken  to  carry  the  case 
to  the  United  States  Supreme  Court.  Accordingly,  in  1839,  the 
great  case  of  Bank  of  Augusta  v.  Earle  (13  Peters  519)  was 
argued  before  that  court  by  David  B.  Ogden  of  New  York, 
Daniel  Webster  of  Massachusetts  and  John  Sergeant  of  Pennsyl- 
vania against  Charles  J.  Ingersoll  of  Pennsylvania  and  William 
H.  Crawford  of  Georgia (2)  : 

The  arguments  were  largely  based  on  considerations  of  public 
policy  and  economics,  the  counsel  for  the  plaintiffs  arguing  with 
great  ardor  the  inconvenience,  mischief,  injustice  and  injury 
which  would  result  to  commerce  and  trade,  if  the  decision  of  the 
Circuit  Court  should  be  upheld. 

Thus  David  B.  Ogden  argued : 

A  deeper  wound  will  be  inflicted  on  the  commercial  business  of 
the  United  States  than  it  has  ever  sustained.  The  principal  means 
by  which  the  commercial  dealings  between  the  States  of  the 
United  States  and  Alabama  is  conducted  will  be  at  an  end ;  and 
there  will  be  no  longer  the  facilities  for  intercourse  for  the  pur- 
poses of  traffic  by  which  alone  it  is  prosperous  and  beneficial.  . 

(1)  See  opinion  of  Kent,  printed  in  full  in  Law  Reporter,  Vol.  I,  July 
1838. 

(2)  There  were  three  cases  consolidated  for  argument — New  Orleans 
and  Carrollton  R.  R.  Co.  v.  Earle,  Bank  of  the  United  States  v.  Earle,  and 
Bank  of  Augusta  v.  Earle. 


CORPORATION  LAW.  151 

.  .  The  purchases  of  bills  of  exchange  in  that  State  are  ex- 
tensively made  by  the  agents  of  Corporations  of  other  States; 
thus  by  the  competition  which  is  produced,  the  rates  of  exchange 
are  kept  in  due  proportion  to  those  of  other  States.  The  large 
productions  of  cotton  in  that  State  are  thus  enabled  to  realize  to 
the  planter  a  proper  and  an  equal  price  to  that  obtained  by  the 
planter  in  the  neighboring  States.  The  proposition  in  the  Circuit 
Court  ...  is  that  a  corporation  of  one  State  can  do  no  com- 
mercial business,  can  make  no  contract  and  can  do  nothing  in  any 
State  of  the  Union  but  in  that  in  which  it  has  been  created.  The 
proposition  is  the  more  injurious  as  in  the  United  States  associ- 
ated capital  is  essentially  necessary  to  the  operations  of  commerce 
and  the  creation  and  improvement  of  the  facilities  of  intercourse 
which  can  only  be  accomplished  by  large  means.  .  .  .  One 
of  the  most  important  objects  and  interests  for  the  preservation 
of  the  Union  is  the  establishment  of  railroads.  Cannot  the  rail- 
road corporations  of  New  York,  Pennsylvania  or  Maryland  make 
a  contract  out  of  the  State  for  materials  for  the  construction  of 
a  railroad?  Cannot  these  companies  procure  machinery  to  use  on 
their  railroads,  in  another  State? 

And  Daniel  Webster  said : 

A  learned  gentleman  on  the  other  side  said  the  other  day  that 
he  thought  he  might  regard  himself  in  this  cause  as  having  the 
country  for  his  client.  ...  I  agree  with  the  learned  gentle- 
man, and  I  go  indeed  far  beyond  him  in  my  estimate  of  the  im- 
portance of  this  case  to  the  country.  .  .  .  For  myself,  I  see 
neither  limit  nor  end  to  the  calamitous  consequences  of  such  a 
decision.  I  do  not  know  where  it  would  not  reach,  what  interests 
it  would  not  disturb,  or  how  any  part  of  the  commercial  system 
of  the  country  would  be  free  from  its  influence,  direct  or  remote. 

On  the  other  side,  Charles  J.  Ingersoll  pointed  out  the  danger 
of  increasing  the  power  of  corporations  in  this  country,  and  in- 
sisted that  a  State  ought  not  to  be  forced,  by  any  doctrine  of 
comity  or  otherwise,  to  allow  a  corporation  of  another  State  to  do 
business  within  its  borders  : 

It  is  true  that  in  order  to  keep  pace  with  the  flood  of  these 
associations,  the  Common  Law  with  its  characteristic  adaptation 
to  exigencies  has  counteracted  their  intolerable  privilege  by  hold- 
ing them  to  personal  liability.  .  .  .  Power  to  pronounce  it  (the 
Common  Law)  impolitic,  to  break  in  upon  or  discard  it,  if  it  exists 
in  any  court  should  be  sparingly  exercised.  .  .  .  These 
United  States  as  such  can  have  no  private  corporation;  and  if 
upon  false  notions  of  commercial  intimacy  they  are  to  be  con- 
solidated by  traders,  corporations  and  professional  dogmas,  con- 


152  HARVARD  LAW  SCHOOL. 

trary  to  the  true  spirit  of  our  political  institutions,  not  only  the 
rights  of  all  the  States  but  the  Federal  Constitution  itself  will  be 
at  an  end.  .  .  .  It  is  confidently  submitted  to  the  Court  that 
it  will  best  fulfil  its  duties  by  holding  the  States  united  by  sov- 
ereign ties ;  by  the  State  remaining  sovereign  and  the  corporations 
subject;  not  by  sovereign  corporations  and  subject  States.  .  .  . 
If  courts  are  bound  by  Common  Law  to  restrict  corporations  to 
the  specific  purposes  of  their  creation,  they  are  bound  by  the  same 
Common  Law  to  prevent  their  wandering  out  of  place  as  much  as 
out  of  purpose.  .  .  .  This  is  perhaps  a  question  rather  of 
politics  than  of  jurisprudence. 

| 
The  Court,  in  an  opinion  rendered  by  Chief  Justice  Taney, 

overruled  the  Circuit  Court  and  denied  the  doctrine  of  the  con- 
finement of  a  corporation  to  business  within  the  State  of  its  char- 
ter. From  the  decision  of  this  case,  therefore,  the  great  develop- 
ment of  interstate  corporate  business  may  be  said  to  date. 

The  following  interesting  comment  is  made  by  William  M. 
Meigs  in  his  Life  of  Charles  J.  Ingersoll : 

This  was  a  very  important  case — rather  one  of  politics  or  public 
law  than  of  mere  private  right  between  suitors.  Mr.  Ingersoll 
.  .  .  entered  into  the  case  with  intense  interest  .  .  .  and 
was  evidently  disappointed  at  losing,  and  wrote  to  Mr.  (Henry 
D.)  Gilpin  to  that  effect,  but  was  told  in  reply  that  he  should  not 
be  worried  at  his  inability  to  defeat  a  corporation  when  the  whole 
country  had  to  bear  them,  as  Sinbad  had  his  burden.  .  .  .  The 
prevailing  view  today  probably  is  that  the  decision  was  both  right 
and  desirable;  but  such  questions  were  then  far  more  open  to 
doubt  in  the  public  mind  than  now ;  and  the  thoughtful  observer 
may  well  question  in  view  of  the  unrest  now  so  prevalent  (1897) 
and  the  so  general  feeling  that  organized  capital  has  too  much 
power,  whether  our  country  might  not  have  been  more  sound  at 
the  core  if  some  of  the  most  important  decisions  had  gone  the 
other  way. 

One  other  decision  of  the  United  States  Supreme  Court  during 
this  period  had  immense  effect  on  the  growth  of  modern  corpor- 
ate commerce. 

From  1809  to  1844,  it  had  been  held  by  that  Court  ever  since 
the  decision  of  Chief  Justice  Marshall  in  Bank  of  the  United 
States  v.  Deveaux  (5  Cranch  61)  that  the  Federal  Courts  had  no 
jurisdiction  on  the  ground  of  diverse  citizenship,  in  a  case  where 
a  corporation  was  a  party,  unless  all  the  individual  stockholders 
of  the  corporation  were  citizens  of  a  State  other  than  that  of  the 
other  party  to  the  suit.  Such  a  doctrine  of  course  greatly  re- 


CORPORATION  LAW.  153 

stricted  the  rights  of  a  corporation  to  sue  in  a  Federal  Court, 
and  made  such  suit  almost  impossible. 

In  1844,  however,  in  Louisville  R.  R.  v.  Letson  (2  Howard 
557)  Chief  Justice  Taney  delivered  an  opinion,  taking  the  broad 
ground  that  a  corporation,  although  an  artificial  person,  was  to  be 
deemed  an  inhabitant  of  the  State  of  its  incorporation,  and  to  be 
treated  as  a  citizen  of  that  State  for  purposes  of  suit.  Of  this 
case,  Judge  Story  wrote  to  Ex-Chancellor  Kent,  Aug.  31,  1844: 

I  equally  rejoice,  that  the  Supreme  Court  has  at  last  come  to 
the  conclusion,  that  a  corporation  is  a  citizen,  an  artificial  citizen, 
I  agree,  but  still  a  citizen.  It  gets  rid  of  a  great  anomaly  in  our 
jurisprudence.  This  was  always  Judge  Washington's  opinion.  I 
have  held  the  same  opinion  for  very  many  years,  and  Mr.  Chief 
Justice  Marshall  had,  before  his  death,  arrived  at  the  conclusion, 
that  our  early  decisions  were  wrong. 

In  1853,  m  Marshall  v.  Baltimore  &  Ohio  R.  R.  (16  Howard 
314)  it  was  held  that  there  was  a  conclusive  presumption  of  law 
that  all  the  shareholders  were  citizens  of  the  State  of  incorpora- 
tion ;  and  this  was  further  strengthened  by  a  decision  in  1857,  in 
Coznngton  Draivbridge  Co.  v.  Shepherd  (20  Howard  227)  that 
parties  were  to  be  held  estopped  from  denying  such  citizen- 
ship, (i) 

These  decisions  not  only  opened  the  door  wide  to  interstate 
commerce  by  corporations,  but  they  were  of  vast  importance  in 
breaking  down  the  barriers  sought  to  be  erected  by  the  political 
supporters  of  the  narrow  States'  rights  doctrines,  and  in  increas- 
ing the  strength  of  the  Federal  power. 

In  one  direction,  the  great  growth  of  corporations  made  neces- 
sary the  development  of  a  branch  of  corporate  laws  to  which 
little  attention  had  hitherto  been  paid — the  limits  of  the  scope  of 
corporate  action  and  the  doctrine  of  ultra  vires.  As  stated 
in  the  preface  to  the  first  book  on  this  subject,  Brice  on  Ultra 
Vires  published  in  1874,  it  is  said : 

The  doctrine  of  ultra  vires  is  of  modern  growth.  Its  appear- 
ance as  a  distinct  fact  and  as  a  guiding  and  rather  misleading 
principle  in  the  legal  system  of  this  country  dates  from  about 


(i)  For  interesting  articles  on  this  subject  see  A  Legal  Fiction  -with  its 
IVings  Clipped,  by  S.  E.  Baldwin  in  Amer.  Law  Review,  Vol.  XLI  (1907). 
Abrogation  of  Federal  Jurisdiction,  by  Alfred  Russell,  Harv.  Law  Review, 
Vol.  VII  (1892).  Corporate  Citizenship  a  Legal  Fiction,  by  R.  M.  Benja- 
min, Albany  Lazv  Journal,  Vol.  LXIX  (1907). 


154  HARVARD  LAW  SCHOOL. 

1845,  being  first  prominently  mentioned  in  the  cases,  in  equity  of 
Caiman  v.  Eastern  Counties  Ry.  Co.  (10  Beavan  i)  in  1846,  and 
at  law  of  East  Anglian  Ry.  Co.  v.  Eastern  Counties  Ry.  Co.  ( 1 1 
C.  B.  775)  in  1851. 

In  the  United  States  Supreme  Court,  however,  in  1858,  it  was 
referred  to  as  "not  a  new  principle  in  the  jurisprudence  of  this 
court"(0- 

This  period,  1830-1850,  also  witnessed  the  beginning  of  the 
formation  of  the  law  as  to  the  financial  management  of  corpora- 
tions— questions  relating  to  the  status  of  shares  of  stock,  over- 
issues, fully  paid  stock,  coupon  bonds  and  the  like,  the  law  as  to 
which,  however,  was  not  finally  put  in  satisfactory  shape  until 
after  1860.  The  rudimentary  conditions  of  the  law  as  to  the 
financing  of  corporations  may  be  gathered  from  the  following 
statements  in  Redfield  on  Railways,  published  in  1858: 

But  few  questions  in  regard  to  the  subject  of  railway  invest- 
ments have  been  definitely  settled  in  this  country.  .  .  . 

There  have  been  some  expedients  resorted  to  for  purpose  of 
enabling  companies  to  complete  their  works  without  the  requisite 
capital  bona  fide  subscribed  paid,  which,  as  they  do  not  seem  to 
have  come  much  under  discussion  in  the  judicial  tribunals  of  the 
country,  we  could  do  little  more  than  allude  to,  but  which  have  so 
serious  a  bearing  upon  the  safety  and  permanent  value  of  rail- 
way investments  that  we  could  not  perhaps  with  perfect  pro- 
priety altogether  pass  over  them.  .  .  . 

There  is  very  little  law  as  yet  in  this  country  as  to  the  power 
of  a  railway  corporation  to  mortgage  the  property  and  franchise 
without  statutory  authority. 

The  subject  of  the  duties  and  liabilities  of  officers  of  a  corpora- 
tion to  its  stockholders  was  only  just  being  considered. 

In  1847,  a  question,  novel  then,  but  engaging  much  of  the  at- 
tention of  courts  in  recent  times  arose  in  the  case  of  Smith  v. 
Hurd  (12  Mete.  371),  in  which  stockholders  of  the  Phoenix 
Bank,  which  had  failed  disastrously,  sued  the  directors  for  neg- 
ligence. The  case  was  argued  by  William  H.  Gardiner  and  Pro- 
fessor Simon  Greenleaf  against  Benjamin  R.  Curtis  and  Ben- 
jamon  Rand.  Chief  Justice  Shaw,  holding  that  no  action  would 
lie,  said: 

This  certainly  is  a  case  of  first  impression.    We  are  not  aware 


(i)     Pearoe  v.  Railroad  Co.,  21  Howard  441. 


CORPORATION  LAW.  155 

that  any  similar  action  has  been  sustained  in  England  or  in  any 
of  the  courts  of  this  country.  .  .  .  The  circumstance  that  no 
such  action  has  been  maintained  would  certainly  be  no  decisive  ob- 
jection, if  it  could  be  shown  to  be  maintainable  on  principle,  lint 
the  fact  that  similar  grievances  have  existed  to  a  great  extent  and 
in  numberless  instances  where  such  an  action  would  have  pre- 
sented an  obvious  and  effective  remedy  affords  strong  proof  that, 
in  the  view  of  all  such  suffering  parties  and  their  legal  advisers 
and  guides,  there  was  no  principle  on  which  such  an  action  can  be 
maintained. 

The  above  very  general  survey  makes  it  clear  that  this  period 
was  distinctly  a  formative  one,  in  which  great  judges  on  the 
bench  had  an  everlasting  effect  on  the  destinies  of  the  country. 


CHAPTER  XXXII. 
THE  ANTI-SLAVERY  PERIOD  I. 

No  proper  understanding  can  be  had  of  the  Law  School  life 
during  the  exciting  twelve  years  prior  to  the  Civil  War,  without 
an  appreciation  of  the  local  political  and  social  conditions  in 
Boston  and  Cambridge. 

The  leading  men  of  Boston,  and  of  what  may  be  called  the 
Harvard  College  circle,  were  intensely  clannish.  They  were 
closely  related  by  constant  intermarriages (i).  Views,  move- 
ments, and  men,  originating  from  outside,  met  with  little  favor 
from  what  Oliver  Wendell  Holmes  happily  termed,  "the  Brahmin 
caste".  Conservatism  reigned  supreme; — tolerating  such  radical- 
ism as  the  Transcendentalist  movement  only  because  Emerson 
and  his  disciples  were  of  strictly  native  origin.  "A  vast  amount 
of  toryism  and  donnishness  everywhere ;"  wrote  Thackeray  after 
his  visit  to  Boston  in  1853.  Foreign  radical  movements  were 
rarely  endorsed;  and  even  the  popular  uprisings  in  Europe  of 
1840-1850  received  little  sympathy  from  the  people  of  Boston. 

Sumner,  writing  April  14,  1848,  said,  'The  feeling  in  Boston 
is  contrary  to  the  Revolution.  The  commercial  interests  are  dis- 
turbed by  the  shock  that  property  has  received.  Mr.  Webster,  I 
am  told,  condemns  the  Revolution" ;  again,  in  1852,  "The  Com- 
monwealth is  for  Kossuth ;  the  City  is  against  him.  The  city  is 
bigoted,  narrow,  provincial  and  selfish ;  the  country  has  more  the 
spirit  of  the  American  Revolution." 

Men  who  held  broadly  democratic,  law  reform,  or  anti-corpora- 
tion views,  like  the  talented  lawyer,  Robert  Rantoul,  Jr.,  were 
frowned  upon.  The  narrow  horizon  of  the  old  Federalist  mer- 
chants and  shipowners  still  hemmed  in  their  descendants ;  and 


(r)  The  members  of  society  were  closely  related  by  intermarriage. 
"Thus  the  Ticknor,  Eliot,  Dwight,  Guild  and  Norton  families  were  con- 
nected by  marriage,  and  Mr.  Samuel  Eliot  was  a  near  kinsman  of  the 
Curtis  family.  Similar  ties  of  blood  and  marriage  united  the  Sears,  Ma- 
son, Warren,  Parker  and  Amory  families,  and  also  the  Shaw,  Sturgis, 
Parkman  and  Perkins  families.  Another  group  was  the  Sturgis,  Per- 
kins, Cabot,  Forbes,  Cary,  Gardiner  and  Gushing  families.  See  Memoirs 
and  Letters  of  Charles  Sumner,  by  Edward  L.  Pierce. 


ANTI-SLAVERY  PERIOD.  157 

maintenance  of  the  sources  of  their  wealth  was  the  chief  impulse 
in  their  politics.    As  Edward  L.  Pierce  wrote(i)  : 

The  capitalists,  like  Nathan  Appleton  and  Abbott  Lawrence 
were  greatly  interested  in  a  protective  tariff  and  its  maintenance, 
then  the  one  end  of  their  politics.  It  was  all  important  to  their 
interests  to  keep  the  Whig  party,  north  and  south,  united  in  sup- 
port of  the  tariff,  and  with  reference  to  a  market  to  keep  on  good 
terms  with  the  southern  people.  A  southern  slaveholder,  or  his 
son  at  Harvard,  was  more  welcome  in  society  than  any  guest 
except  a  foreigner.  Southern  planters  tarried  for  weeks  at  the 
Tremont  House  .  .  .  and  from  year  to  year  there  registered 
among  its  guests  the  well  known  names  of  the  Allstons,  Hugers, 
Izards,  Rhetts.  .  .  .  The  deference  to  rich  southern  planters 
was  marked. 

Adams,  in  his  life  of  Richard  H.  Dana,  Jr.,  describes  the  situa- 
tion in  Boston  as  it  affected  a  lawyer's  career (2)  : 

To  be  an  avowed  Free  Soiler  in  Boston  between  the  years 
1848  and  1856,  implied  a  good  deal.  Society,  as  it  is  called. — that 
is.  the  wealth,  culture  and  professional  and  business  activities  of 
Boston, — in  short,  the  large  majority  of  those  "best  people" 
towards  whom  Dana  felt  an  instinctive  affinity,  were  Whigs, 
and  devoted  personal  as  well  as  political  adherents  of  Mr.  Web- 
ster. A  certain  thin,  colorless  anti-slavery  sentiment  had  always 
been  current  and  fashionable  among  them.  .  .  .  But  it  was  a 
mere  sentiment,  having  no  hold  either  in  conviction  or  in  ma- 
terial interest.  On  the  contrary,  so  far  as  material  interests  were 
concerned,  a  great  change  had  recently  taken  place.  The  manu- 
facturing development  of  Massachusetts  had  been  rapid,  and  a 
close  affiliation  had  sprung  up  between  the  cotton  spinners  of  the 
North  and  the  cotton  producers  of  the  South, — or,  as  Charles 
Sumner  put  it,  between  "the  lords  of  the  loom  and  the  lords  of 
the  lash."  .  .  .  Under  the  guise  of  loyalty  to  the  Union  and 
the  Constitution,  social  and  business  Boston  by  degrees  became, 
in  its  heart,  and  almost  avowedly,  a  pro-slavery  community ;  and 
it  so  remained  until  1861.  .  .  . 

An  abolitionist  was  looked  upon  as  a  sort  of  common  enemy  of 
mankind ;  a  Free  Soiler  was  only  a  weak  and  illogical  abolitionist. 

.  .  .  Sumner  and  Dana,  for  instance,  had  long  been  frequent 
and  favored  guests  in  the  house  of  Mr.  Ticknor.  After  they 
became  pronounced  Free  Soilers,  they  soon  ceased  to  be  seen 
there;  and.  indeed,  things  went  so  far  that  all  social  relations  be- 
tween them  and  the  family  of  their  former  host  were  broken  off. 
So  it  was  generally.  .  .  .  Moreover,  nearly  all  the  wealth  and 

(1)  Memoirs  and  Letters  of  Charles  Sumner,  by  Edward  L.  Pierce. 

(2)  Richard  Henry  Dana,  by  Charles  Francis  Adams,  Vol.  I    (1891). 


158  HARVARD  LAW  SCHOOL. 

the  moneyed  institutions  of  Boston  were  controlled  by  the  con- 
servatives ;  and  among  the  moneyed  institutions  were  the  marine 
insurance  companies.  The  ship-owners  and  merchants  were 
Whigs,  almost  to  a  man.  It  is,  therefore,  safely  within  the  mark 
to  say  that  Dana's  political  course  between  1848  and  1860  not  only 
retarded  his  professional  advancement,  but  seriously  impaired  his 
income.  It  kept  the  rich  clients  from  his  office.  He  was  the  coun- 
sel of  the  sailor  and  the  slave, — persistent,  courageous,  hard-fight- 
ing, skilful,  but  still  the  advocate  of  the  poor  and  the  unpopular. 
In  the  mind  of  wealthy  and  respectable  Boston  almost  any  one 
was  to  be  preferred  to  him, — the  Free  Soil  Lawyer,  the  counsel 
for  the  fugitive  slave,  alert,  indomitable,  always  on  hand. 

This  same  general  attitude  prevailed  both  in  Harvard  College 
and  the  Law  School,  described  in  a  letter  from  Dana,  to  the  noted 
New  York  lawyer,  Daniel  Lord,  Jan.  26,  1854: 

I  have  a  particular  dislike  to  subserviency,  even  appearance  of 
subserviency,  on  the  part  of  our  people  to  the  slaveholding 
oligarchy.  I  was  disgusted  with  it  in  college,  at  the  Law  School, 
and  have  since  been  in  society  and  politics.  The  spindles  and  the 
day  book  are  against  us  just  now,  for  Free  Soilism  goes  to  the 
wrong  side  of  the  ledger.  The  blood,  the  letters  and  the  plough, 
are  our  chief  reliance. 

Such  being  the  conditions,  it  is  not  surprising  that  a  large  por- 
tion of  the  ruling  Whig  party  was  not  in  sympathy  with  the  Anti- 
Slavery  movement,  and  closed  their  doors  to  Sumner  and  others 
of  his  way  of  thinking,  when  they  became  Free  Soilers.  On  the 
other  hand,  a  strong  body  of  young  and  middle  aged  men  was 
forming,  filled  with  the  enthusiasm  of  the  Free  Soil  movement — 
Richard  H.  Dana,  Jr.,  Charles  Francis  Adams,  John  G.  Palfrey, 
Samuel  G.  Howe,  Horace  Mann,  Charles  W.  Ellis,  Samuel  E.  Se- 
wall,  Ellis  Gray,  Henry  Wilson,  George  F.  Hoar ;  and  with  these 
may  be  counted  such  of  the  Cambridge  circle  as  Lowell  and  Long- 
fellow. The  more  rabid  of  the  abolitionist  agitators,  like  William 
Lloyd  Garrison,  Theodore  Parker,  and  Wendell  Phillips,  consti- 
tuted another  faction  in  the  community. 

In  the  Nation,  events  of  vast  import  to  the  future  were  crowd- 
ing on  the  scene.  The  Mexican  War  had  ended,  when  on  July  4, 
1848,  peace  had  been  proclaimed  with  Mexico.  Nine  days  before 
the  Peace  Treaty  had  been  signed,  a  Swiss  emigrant  digging  a  mill 
race  on  the  ranch  of  Colonel  Suter  near  Sacramento,  California, 
had  turned  up  gold.  Within  a  few  months  a  stream  of  men,  young 


ANTI-SLAVERY  PERIOD.  159 

and  old,  was  pouring  from  the  Northern  and  Eastern  States 
across  the  plains,  around  the  Horn  and  over  the  Isthmus. 
The  slave  holding  States,  less  enterprising,  lost  their  opportunity, 
and  in  September,  1849,  California  adopted  a  constitution  as  a 
free  State.  The  attempts  of  the  South  to  secure  the  remainder 
of  the  new  territory  for  slavery  became  thenceforward  the  ab- 
sorbing subject  in  men's  thoughts  throughout  the  country.  The 
older  statesmen  were  passing  off  the  scene.  John  Quincy  Adams 
died  Feb.  23,  1848;  Harrison  Gray  Otis,  Oct.  28,  1848;  John  C. 
Calhoun,  March  31,  1850;  Henry  Clay,  June  29,  1852;  and 
Daniel  Webster,  October  24,  1852. 

The  first  convention  of  the  Free  Soil  Party  was  held  in  Buffalo 
in  August,  1848,  nominating  Martin  Van  Buren  for  President 
and  Charles  Francis  Adams  for  Vice  President.  In  Massachu- 
setts, a  Free  Soil  Convention,  in  September,  nominated  Stephen 
C.  Phillips  for  Governor.  In  the  fall  of  1848,  occurred  the  presi- 
dential campaign,  Zachary  Taylor  of  Louisiana  being  the  Whig 
candidate  and  Lewis  Cass  of  Michigan,  the  Democratic.  In  this 
campaign,  the  students  in  the  Law  School  took  an  active  interest. 
The  representation  at  the  School  from  the  Southern  States  was 
numerous  at  the  time ;  and  the  Louisiana  students  were  especially 
zealous  for  Taylor.  The  political  rallies  held  in  Cambridge,  there- 
fore, were  largely  attended  by  the  law  students.  At  one  of  these 
meetings  in  the  fall  of  1848,  Abraham  Lincoln,  then  the  only 
Whig  member  of  Congress  from  Illinois,  delivered  a  speech  vig- 
orously attacking  the  new  Free  Soil  party.  At  another  meeting 
held  by  Free  Soil  partisans,  Charles  Sumner  made  a  speech,  of 
which  Longfellow  wrote  in  his  diary  Oct.  26,  1848 : 

Sumner  made  a  Free  Soil  speech  in  Cambridge,  ah  me !  in  such 
an  assembly :  It  was  like  one  of  Beethoven's  symphonies  played  in 
a  saw  mill.  He  spoke  admirably  well,  but  the  shouts  and  the 
hisses  of  the  vulgar  interruptions  grated  on  my  ears.  I  was  glad 
to  get  away. 

The  disturbance  referred  to  was  caused,  it  is  said,  largely  by 
the  Southern  law  students,  and  Sumner  was  forced  to  turn 
on  them  by  exclaiming  finally :  "The  young  man  who  hisses  will 
regret  it  ere  his  hair  turns  grey.  He  can  be  no  son  of  New  Eng- 
land ;  her  soil  would  spurn  him." 

Three  years  later,  Horace  Mann  and  Ralph  Waldo  Emerson 
met  with  a  similar  experience,  described  by  Longfellow  as  fol- 
lows : 


160  HARVARD  LAW  SCHOOL. 

May  14,  1851,  went  to  hear  Emerson  on  the  Fugitive  Slave  Law 
at  the  Cambridge  City  Hall.  Some  noise  and  shoutings 
and  hisses  for  every  body  in  general.  The  first  part  of  the 
address  was  grand;  so  was  the  close.  The  treatment  of 
Webster  I  did  not  like  so  well  ("Every  drop  of  blood  in 
this  man's  veins,"  he  said  "has  eyes  that  look  downward"). 
It  is  rather  painful  to  see  Emerson  in  the  arena  of  poli- 
tics, hissed  and  hooted  at  by  young  law  students. 

In  1850,  the  breach  between  the  Slavery  men  and  the  Free 
Soilers  had  become  even  wider;  and  the  more  or  less  neutral 
or  Union  policy  of  the  Whig  party  could  not  restrain  the  growing 
intensity  of  political  feeling.  The  reception  accorded  by  many  of 
his  former  supporters  to  Daniel  Webster's  great  Union  speech 
of  March  7,  1850,  foreshadowed  to  the  country,  even  then,  the 
"irrepressible  conflict". 

In  Massachusetts,  men  were  divided  from  each  another,  accord- 
ing to  their  approbation  or  disapprobation  of  that  single  speech — 
on  the  one  side  the  great  body  of  Webster's  political  friends,  the 
conservative  members  of  the  Whigs  and  Democrats,  on  the  other, 
the  new  third  party,  composed  largely  of  seceders  from  the 
Whigs,  with  Democrats  like  Robert  Rantoul,  Nathaniel  Banks, 
and  Marcus  Morton.  ( i )  The  one  party  welcomed  Webster  back 
from  Washington  with  an  enthusiastic  reception  and  an  address 
by  Benjamin  R.  Curtis,  April  29,  1850.  (2)  The  other  party  voiced 
its  views  in  Whittier's  poem  of  Ichabod,  directed  against  Web- 
ster; in  Ralph  Waldo  Emerson's  description  of  Webster  as  "a 
deal  elephant ;"  in  Sumner's  bitter  phrase  "A  Strafford  or  an 
Archangel  ruined" ;  and  in  such  sentiments  as  appeared  in  Long- 
fellow's diary : 

March  8,  1850.  A  brief  report  comes  of  Webster's  long  expected 
speech.  It  makes  us  very  sad  to  read  it.  Is  it  possible ! 
Is  this  the  Titan  who  hurled  mountains  at  Hayne  years  ago. 

March  9.  Went  to  town.  Found  everybody  complaining  of 
Webster,  "Fallen,  fallen,  fallen  from  his  high  estate",  is 
the  universal  cry  in  various  phraseology.  Yet  what  has 
there  been  in  Webster's  life  to  lead  us  to  think  that  he 


(1)  See  Life  and  Letters  of  Benjamin  R.  Curtis,  Vol.   I. 

(2)  George  Ticknor  wrote,  in  1850: 

"As  Judge  Wayne  says,  'the  demonstration  over  Webster's  speech  is 
triumphant.  The  number  of  letters  he  receives,  about  it  is  prodigious; 
and  the  flood  still  comes  in  as  if  none  had  flowed  before — the  great  west 
goes  for  him  with  .a  rush.'  " 

See  Life  and  Letters  of  George  Ticknor,  Vol.  II. 


ANTI-SLAVERY  PERIOD.  161 

would  take  any  high  moral  ground  on  this  Slavery  question. 
March  10.     Sumner  at  dinner.     He  feels  sadly  about  Webster's 

speech.    But  I  say,  Let  us  have  it  all  and  re-read  it  before 

judging. 
March  16.     In  town.     Talked  with  Mr.  Samuel  Appleton  about 

Webster.    He  says  "I  think  it  a  most  abominable  Speech", 

and  so  do  I. 

In  September,  1850,  came  the  passage  by  Congress  of  the 
Missouri  Compromise  and  the  Fugitive  Slave  Acts,  the  news  of 
which  was  received  in  Massachusetts  by  the  firing  of  a  national 
salute  of  one  hundred  guns  on  Boston  Common,  "as  a  testimonial 
of  joy  on  the  part  of  the  citizens."  A  "Constitutional  Meeting" 
was  held  in  Fanueil  Hall,  addressed  by  Benjamin  R.  Curtis  and 
Rufus  Choate ;  and  the  Compromise  was  approved  in  a  public  let- 
ter addressed  to  Webster,  signed  by  merchants,  like  Eliot,  Per- 
kins, Fearing,  Appleton,  Haven,  Amory,  Sturgis,  Thayer,  Hooper ; 
by  lawyers  like  Choate,  Lunt,  B.  R  Curtis,  G.  T.  Curtis ;  by  doc- 
tors like  Jackson,  Bigelow ;  scholars  like  Ticknor,  Everett,  Sparks, 
Holmes,  Felton;  by  divines  like  Moses  Stuart  and  Leonard 
Woods ;  by  lawyers  like  Franklin  Dexter  and  Charles  G.  Loring. 
In  the  Law  School,  both  Professors  Parker  and  Parsons  favored 
the  Acts,  and  delivered  lectures  to  the  students  in  defence  of 
them.  ( i ) 

On  the  other  hand,  Longfellow  wrote  September  15,  1850:  "The 
day  has  been  blackened  to  me  by  reading  of  the  passage  of  the 
Fugitive  Slave  Law  in  the  House,  Eliot  of  Boston  voting  for  it" ; 
and  Ralph  Waldo  Emerson  said  in  a  speech  at  Concord,  May  2, 
1851  :  "The  act  of  Congress  of  Sept.  18,  1850,  is  a  law  which 
every  one  of  you  will  break  on  the  earliest  occasion  ...  a 
law  which  no  man  can  obey  or  abet  the  obeying  without  loss  of 
self  respect  and  for  failure  of  the  name  of  gentlemen." 

James  Russell  Lowell  wrote : 

Nov.,  1850 :  I  have  been  hoping  to  write  something  in  verse  about 
the  horrible  slave  bill,  something  in  Hosea  Bigelow  vein, 
with  a  refrain  to  it  that  would  take  hold  of  the  popular 
ear  (long  enough  to  be  easily  taken  hold  of,  you  will 
say).  I  should  like  to  tack  something  to  Mr.  Webster  (the 
most  meanly  and  foolishly  treacherous  man  I  ever  heard 
of),  like  the  tail  I  furnished  to  Mr.  John  P.  Robinson. 


(i)     See    Memoirs    and    Letters    of    Charles    Sumner,   by    Edward    L. 
Pierce,  Vol.  III. 
11 


162  HARVARD  LAW  SCHOOL. 

Such  were  the  sentiments  of  the  opponents  of  the  Fugitive 
Slave  Law ;  and  they  were  publicly  expressed  on  all  occasions — 
notably  at  meetings  held  in  Faneuil  Hall,  in  October  and  De- 
cember, 1850,  in  speeches  made  by  Wendell  Phillips,  Theodore 
Parker,  C.  F.  Adams,  Frederick  Douglas  and  Charles  Sumner. 
The  abolitionists  of  the  Garrison  type  were  even  more  anarchical 
in  their  expressions. 

In  the  fall  of  1850,  a  small  band  of  law  students,  not  more  than 
half  a  dozen  out  of  the  entire  School,  joined  the  Free  Soil  party, 
and  campaigned  through  the  State  with  Sumner,  Dana,  Henry 
Wilson,  J.  G.  Palfrey  and  Anson  Burlingame,  (L.  S.  1844-46). 
Prominent  among  them  were  Edward  L.  Pierce  of  Dorchester, 
Mass.  (L.  S.  1850-52),  and  John  Winslow  (L.  S.  1850-52),  later 
a  distinguished  lawyer  of  Brooklyn,  N.  Y. 

Turning  aside  from  politics,  it  may  be  noted  that  the  years  1849- 
50  were  of  special  interest  to  the  law  students,  by  reason  of  four 
noted  law  cases  in  which  Harvard  Professors  took  a  prominent 
part.  The  first  was  the  famous  Edward  Phillips  will  case  in  1849, 
in  which  Rufus  Choate,  Benjamin  R.  Curtis  and  Otis  S.  Lord  pre- 
vailed against  Joel  Parker,  Sidney  Bartlett,  and  William  H.  Gardi- 
ner, (i)  The  second  was  a  case  which  created  much  popular 
feeling,  involving  the  question  of  the  exclusion  of  colored  chil- 
dren from  the  white  schools  of  Boston — Roberts  v.  Boston,  (5 
Cush.  206) — argued  by  Charles  Sumner  and  Robert  Morris,  a 
young  negro  lawyer,  for  the  negroes,  against  Peleg  W.  Chandler. 

The  third  case  was  that  of  the  Boston  and  Lowell  R.  R.  v. 
Salem  and  Lowell  R.  R.  (5  Cush.  375),  in  1850,  involving  the 
question  whether  the  plaintiff  had  an  exclusive  right  to  a  railroad 
between  Boston  and  Lowell.  It  was  one  of  the  most  noted  cases 
argued  by  Joel  Parker,  Elias  Haskett  Derby  being  his  associate, 
arid  Charles  G.  Loring  and  Benjamin  R.  Curtis  his  opponents, 


(i)  An  interesting  letter  from  Everett  to  Chief  Justice  Shaw  Aug. 
29,  1848,  (Harv.  Coll.  Archives.  Letters  of  the  President),  states  that 
Professor  Parker  had  been  asked  to  take  part  in  the  case,  but  desired 
first  to  know  whether  the  College  would  object.  Under  the  will  a  legacy 
was  made  to  the  College.  The  heirs,  seeking  to  break  the  will,  would 
agree  however  to  pay  the  legacy.  Everett  continues : 

"As  Loring  and  Curtis  are  retained  by  the  executor,  would  it  not  be 
good  policy  to  let  Judge  Parker  act  for  the  heirs?  It  appears  to  me  our 
duty  and  our  interest  to  abstain  from  anything  which  would  tend  to 
change  their  present  favorable  disposition  towards  it.  To  refuse  to  per- 
mit our  Professor  to  advise  them  might  have  that  tendency." 


ANTI-SLAVERY  PERIOD.  163 

both  of  the  latter  being  members  of  the  Corporation  of  Harvard 
College,  Parker  winning  on  demurrer. (i) 

Harvard  College  was  stirred  to  its  depths  in  March,  1850,  by 
the  noted  trial  of  Professor  John  W.  Webster  for  the  murder  of 
Dr.  George  Parkman,  who  had  disappeared  in  November,  1849, 
and  parts  of  whose  dissected  body  had  been  found  in  a  vault  of 
the  old  Harvard  Medical  School  building,  a  month  later,  (2) 

Many  of  the  law  students  had  been  enthusiastic  attendants  at 
Professor  Webster's  popular  lectures  on  Chemistry ;  many  knew 
him  as  a  personal  friend.  On  the  days  of  the  trial  before  the 
Supreme  Court  in  Boston,  the  Law  School  lectures  were  sus- 
pended ;  and  admittance  to  the  court  room  was  given  to  the  law 
students  by  tickets  specially  issued  to  them.  The  case  was  heard 
by  Chief  Justice  Shaw  and  Judges  Samuel  S.  Wilde,  Dewey  and 
Theron  Metcalf.  For  the  Government  there  appeared  Attorney 
General  John  H.  Clifford  and  George  Bemis  (later  founder  of 
the  Professorship  of  International  Law  in  the  Law  School). 
For  the  defendant  appeared  Pliny  Merrick  (later  Judge  of  the 
Massachusetts  Supreme  Court)  and  Edward  D.  Sohier.  Both 
Daniel  Webster  and  Rufus  Choate  had  been  asked  to  become 
counsel  for  Professor  Webster,  Franklin  Dexter  and  Charles 
Sumner  being  particularly  urgent  that  Choate  should  take  the 
case  "in  the  interest  of  humanity."  Choate,  however,  declined  to 
act  as  counsel  unless  the  defence  should  be  that  of  self-defence 
or  manslaughter.  (3) 

In  a  review  of  the  case  in  the  North  American  Review  in  1851, 
it  was  said  (4)  : 

The  trial  in  the  course  of  its  progress  was  a  cause  of  intense 
excitement  extending  through  the  whole  length  and  breadth  of 
the  land,  and  reaching  even  into  foreign  countries. 

To  the  honor  of  the  community,  be  it  said,  that  the  excitement, 
however  prolonged  and  intense,  was  tempered  by  a  due  regard  for 
the  majesty  of  the  law  and  the  purity  of  its  administration.  How- 
ever deep  the  feeling,  no  popular  outbreak  threatened  to  wrest 

(1)  This   case   was  finally   decided   in    1854,    (see  2   Gray    i)    with   a 
notable    array    of   eminent    counsel    taking    part,    Rufus    Choate,    Charles 
G.  Loring  and  Josiah  G.  Abbott  for  the  plaintiff ;  and  Joel  Parker,  Stephen 
H.  Phillips  and  George  Minot  for  the  defendant ;  Parker  losing  his  case. 

(2)  Com.  v.   Webster,  5  Cush.  295. 

(3)  See  Life  of  Rufus  Choate,  by  Samuel  G.  Brown. 
My  Own  Story,  by  John  B.  Trowbridge. 

(4)  Review  of  Bemis'  Report  of  the   Webster  trial  in  North  Amer- 
ican Review,  Vol.  LXXII. 


164  HARVARD  LAW  SCHOOL. 

the  prisoner,  guilty  as  he  was  deemed,  from  the  hands  of  the 
officers  of  justice. 

THE  FUGITIVE   SLAVE  CASES. 

In  1851,  there  arose  in  Massachusetts  the  first  of  that  series  of 
Fugitive  Slave  cases,  which  did  more  than  anything  else  to  con- 
solidate the  various  shades  of  anti-slavery  sentiment. 

On  February  14,  Shadrach,  alias  Frederick  Jenkins,  an  alleged 
slave,  was  arrested  in  Boston  and  taken  before  the  United  States 
Commissioner  George  Ticknor  Curtis  (L.  S.  1833-34),  brother 
of  Benjamin  R.  Curtis,  who  was  then  sitting  in  the  LTnited  States 
court  room  in  the  old  Court  House  in  Court  Square.  Richard 
H.  Dana,  Jr.,  whose  office  was  opposite  the  Court  House  at  30 
Court  Street,  was  at  once  retained  as  counsel  for  the  slave,  with 
Robert  Morris,  a  young  attorney  (who  had  been  admitted  to  the 
Bar  in  1847,  after  studying  in  the  office  of  Charles  G.  Loring 
and  who  was  the  first  colored  lawyer  at  the  Suffolk  Bar).  Sum- 
ner  declined  to  act  as  counsel,  being  a  candidate  in  the  senatorial 
election  then  pending  in  the  Legislature.  An  attempt  to  obtain 
from  Chief  Justice  Shaw  a  writ  of  habeas  corpus  was  unsuccess- 
ful. Pending  an  adjournment  of  the  case,  however,  a  band  of 
negroes  and  abolitionist  sympathizers  made  a  raid  on  the  court 
house,  swept  through  it,  taking  the  fugitive  along  with  them,  and, 
as  has  been  said,  "leaving  the  indignant  Commissioner  to  tele- 
graph to  Mr.  Webster  in  Washington  that  he  thought  it  was  a  case 
of  levying  war".  ( i )  Shadrach  was  secretly  taken  out  of  the  City 
and  finally  out  of  the  State — "the  most  noble  deed  done  in  Boston 
since  the  destruction  of  the  Tea  in  1773",  said  Theodore  Parker; 
and  Longfellow  noted  in  his  diary : 

Feb.  15,  1851.  Hear  that  a  fugitive  slave,  or  a  man  accused  of 
being  one,  escaped  to-day  from  the  court  room  during  the 
recess,  aided  by  other  blacks  (Shadrack  a  hotel  waiter). 
Very  glad  of  it.  This  government  must  not  pass  laws  that 
outrage  the  sense  of  right  in  the  community. 

Robert  C.  Winthrop  uttered  the  Whig  view  in  writing,  Feb. 
17,  1851 :  "You  see  there  has  been  a  rumpus  and  a  riot  in  Boston, 
and  escape  from  the  Marshall.  .  .  .  It  is  lamentable  to  have 
such  a  triumph  given  to  nullification  and  rebellion. "(2) 

(1)  Autobiography  of  Seventy  Years,  by  George  F.  Hoar,  Vol.  I. 

(2)  Life  of  Robert  C.  Winthrop,  by  R.  C.  Winthrop,  Jr. 


ANTI-SLAVERY   PERIOD.  165 

On  June  i,  1851,  the  trials  of  James  Scott,  Lewis  Hayden,  John 
P.  Coburn,  Thomas  P.  Smith,  Joseph  K.  Hayes,  Robert  Morris 
and  Elizur  Wright,  implicated  in  the  rescue  of  Shadrach,  began 
before  Judge  Peleg  Sprague  in  the  United  States  District 
Court. (i)  John  P.  Hale  and  Richard  H.  Dana,  Jr.,  appeared  for 
the  defendants,  George  Lunt  being  United  States  District  Attor- 
ney. The  trial  of  these  "Rescue  Cases"  lasted  for  eighteen 
months;  but  no  convictions  were  secured. (2)  In  one  case,  the 
jury  stood  eleven  to  one  against  the  defendant,  and  as  Dana 
discovered  afterwards  from  the  man  himself,  the  one  juryman 
who  stood  out  was  the  very  man  who  had  carried  Shadrach  out  of 
the  State.  George  F.  Hoar  tells  the  story  as  follows (3)  : 

I  went  into  the  court  room  during  the  trial  of  Elizur  Wright, 
Editor  of  the  Chronotype,  indicted  for  aiding  in  rescue  of  Shad- 
rach and  saw  seated  in  the  front  row  of  the  jury  my  old  friend 
Francis  Bigelow.  .  .  .  He  was  a  Free  Soiler  and  his  wife 
a  Garrison  Abolitionist.  His  house  was  a  station  on  the  under- 
ground railroad  where  fugitive  slaves  were  harbored  on  their  way 
to  Canada.  Shadrach  had  been  put  into  a  buggy — driven  out  as 
far  as  Concord  and  kept  over  night  by  Bigelow  at  his  house. 
.  .  .  Richard  H.  Dana,  who  was  counsel  for  Elizur  Wright, 
asked  Judge  Hoar  what  sort  of  a  man  Bigelow  was.  To  which 
the  Judge  replied.  "He  is  a  thoroughly  honest  man  and  will 
decide  the  case  according  to  the  law  and  evidence  as  he  believes 
them  to  be.  But  I  think  it  will  take  a  good  deal  of  evidence  to 
convince  him  that  one  man  owns  another." 

Before  the  excitement  of  the  Shadrach  case  had  begun  to  abate, 
Boston  was  again  upheaved  by  the  arrest  of  another  alleged  fugi- 
tive slave — Thomas  Sims,  April  3,  1851.  (4)  Sims  was  arrested 
at  the  instance  of  Seth  G.  Thomas,  counsel  for  the  slave-owner, 
on  a  warrant  issued  by  United  States  Commissioner  George  T. 
Curtis,  who  placed  Sims  in  the  custody  of  the  United  States 
Marshal,  Charles  Devens  (L.  S.  1838-40).  Samuel  E.  Sewall, 

(1)  See  interesting  account   in  Richard  H.   Dana  by  Charles  Francis 
Adams,  Vol.  I;  also  Pen  Portraits,  by  "Warrington"   (William  S.  Robin- 
son)   (1877). 

(2)  Benjamin  R.   Curtis    (L.   S.    1829-30)    who  succeeded  Story's  suc- 
cessor, Levi  Woodbury,  in  the  United  States  Supreme  Court,  in  October, 
1851,  presided  at  these  trials. 

(3)  Autobiography  of  Seventy  Years,  by  George  F.  Hoar,  Vol.  I. 

(4)  For    full    and    accurate    contemporary    account    of    the    case,    see 
Laze  Reporter,  Vol.  XIV,   (May,  1851). 

See  also  especially,  Richard  H.  Dana,  by  Charles  Francis  Adams; 
Memoirs  and  Letters  of  Charles  Stunner,  by  Edward  L.  Pierce,  Vol.  II; 
and  Memoirs  of  Robert  Rantoul,  Jr.,  by  Luther  Hamilton  (1854). 


166  HARVARD  LAW  SCHOOL. 

Richard  H.  Dana,  Jr.,  Charles  Sumner,  Charles  G.  Loring  and 
Robert  Rantoul,  Jr.,  acted  as  counsel  for  Sims.  On  April  4,  a 
petition  for  habeas  corpus  was  argued  in  the  State  Supreme 
Court  before  Chief  Justice  Shaw,  who  decided  against  the  peti- 
tion, upholding  the  constitutionality  of  the  Fugitive  Slave 
Law(i).  On  April  u,  Mr.  Curtis  remanded  the  slave  to  the 
custody  of  his  owner. 

Meanwhile  over  half  a  dozen  applications  for  various  legal 
processes  were  made  to  District  Judge  Peleg  Sprague  and  Su- 
preme Court  Judge  Levi  Woodbury,  to  obtain  Sims'  release,  or 
his  surrender  to  the  State  authorities — but  without  success.  From 
April  4  to  April  12,  Sims  was  confined  in  the  Court  House 
and  the  sidewalks  around  the  building  were  enclosed  by  chains 
and  guarded  by  a  strong  force  of  police,  in  fear  of  a  popular  up- 
rising; and  it  was  said  that  Judge  Shaw  actually  went  under  the 
chains  to  get  to  his  court  room. 

"I  never  had  any  confidence  in  the  Supreme  Court  of  Massa- 
chusetts in  case  the  Fugitive  Slave  Law  came  before  it,"  wrote 
Theodore  Parker  to  Charles  Sumner,  "But  think  of  old  stiff 
necked  Lemuel  visibly  going,  under  the  chains.  That  was  a 
spectacle!"  (2) 

On  the  day  of  the  arrest,  Wendell  Phillips  made  an  incendiary 
speech  to  a  large  gathering  on  the  Common,  and  that  evening 


(1)  Sims  Case,  7  Cush.  285. 

(2)  Letters  of  Theodore  Parker,  April  19,  1851,  in  Life  of  Theodore 
Parker,  by  O.   B.  Frothingham    (1886). 

See  also  Letter  of  "Warrington"  to  Lowell-American  in  Pen  Por- 
traits, by  W.  S.  Robinson,  April  14,  1857. 

"Who  has  done  this?  Not  Massachusetts?  No.  The  humiliation 
belongs  to  Massachusetts;  but  the  infamy  belongs  to  Boston  alone.  The 
chained  court-house,  the  military  array,  the  extraordinary  police-force 
by  night  and  day, — these  things  show  that  it  was  only  with  great  difficulty 
that  even  in  Boston  the  law  could  be  enforced;  nowhere  else  in  the  State 
would  there  have  been  the  least  prospect  of  success.  It  is  only  in  the 
midst  of  a  corrupt  public  sentiment  that  such  an  infamous  law  can  be  en- 
forced ;  and  the  country  is  sound  to  the  core  on  this  question. 

Perhaps  it  is  too  sweeping  to  say  that  Boston  is  responsible  for  this. 
It  is  a  combination  of  the  money  and  the  Websterism  of  Boston  which 
is  responsible, — the  corrupting  political  influence  of  the  most  corrupt 
politician  that  ever  cursed  the  country  with  his  presence,  combined  with 
the  base  love  of  gain,  which  would  sacrifice  all  law,  and  all  conscience, 
and  all  liberty,  for  the  profits  of  slaveholding  trade.  It  is  the  fifteen 
hundred  'respectable  men,'  who,  according  to  Tukey,  volunteered  to  aid 
in  carrying  Sims  back  to  Slavery,  who  have  done  this.  Their  money  cor- 
rupted the  pulpit  and  the  press ;  their  political  influence  controlled  the 
city  authorities,  and  placed  the  laws  of  the  State  at  defiance,  that  John 
B.  Bacon  might  carry  off  his  'nigger.'  Oh,  what  a  triumph  of  Webster- 
Whiggery!  What  a  victory  of  cotton  over  the  conscience  of  the  people!" 


ANTI-SLAVERY  PERIOD.  167 

Theodore  Parker  addressed  a  meeting  in  Tremont  Temple.  Five 
days  later,  an  excited  convention  met  in  Tremont  Temple,  pre- 
sided over  by  Horace  Mann,  and  addressed  by  Henry  Wilson, 
Thomas  W.  Higginson,  William  Lloyd  Garrison  and  John  G. 
Palfrey.  On  April  12,  however,  Sims  was  removed  from  Bos- 
ton by  his  owner.  (2) 

The  sentiments  of  the  anti-slavery  men  are  interestingly  shown 
in  the  following  diary  entries. 

James  Russell  Lowell  wrote: 

April  20,  1851.  I  agonized  to  write  something  about  the  kid- 
napping of  Sims — but  the  affair  was  so  atrocious  that  I  could  not 
do  it. 

Richard  H.  Dana,  Jr.,  wrote : 

Our  temple  of  justice  is  a  slave  pen !  Our  officers  are  slave 
hunters,  and  the  voice  of  the  old  law  of  the  State  is  hushed  and 
awed  into  silence  before  this  fearful  slave  power  which  has  got 
such  entire  control  of  the  Union. 

Longfellow  wrote : 

April  4,  1851.  There  is  much  excitement  in  Boston  about  the 
capture  of  an  alleged  fugitive  slave.  O  city  without  soul ! 
When  and  where  will  this  end?  Shame  that  the  great  Re- 
public, the  "refuge  of  the  oppressed",  should  stoop  so  low 
as  to  become  the  Hunter  of  Slaves. 

April  5.  Troops  under  arm  in  Boston ;  the  court  house 
guarded;  the  Chief  Justice  of  the  Supreme  Court  forced 
to  stoop  under  chains  to  enter  the  temple  of  Justice !  This 
is  the  last  point  of  degradation.  Alas  for  the  people  who 
cannot  feel  an  insult !  While  the  "great  Webster"  comes 
North  to  see  that  the  work  is  done ! 

April  6.  Sumner  says  that  Charles  G.  Loring  is  to  defend  the 
fugitive  Sims.  They  want  to  get  a  chance  to  argue  the 
Constitutionality  of  this  Fugitive  Slave  Law. 

April  12.  Dined  in  town;  had  some  political  chat  with  S.  A. 
Good  old  man  !  who  is  true  to  his  pure  and  upright  instincts 
and  holds  the  Fugitive  Slave  Law  in  proper  detestation. 

April  25.  The  papers  are  all  ringing  with  Sumner,  Sumner! 
and  the  guns  are  thundering  out  their  triumph.  Mean- 
while the  hero  of  the  Strife  is  sitting  quietly  here,  more 
saddened  than  exalted.  Palfrey  dined  with  us.  I  went  to 
my  Don  Quixote  at  college,  leaving  the  two  Free  Soilers 
sitting  over  their  nuts  and  wine.  ( i ) 

(i)  The  reference  here  was  to  Sumner's  election  as  United  States 
Senator.  At  the  fall  election  of  1850,  no  Governor  was  chosen  by  the 
people;  but  at  the  next  session  of  the  Legislature  George  A.  Boutwell 


i68  HARVARD  LAW  SCHOOL. 

The  views  of  the  conservative  Whigs  of  Boston  are  illustrated 
by  the  following  letter  from  Webster  to  President  Fillmore,  April 
13,  1851(1): 

You  will  have  heard  that  the  negro  Simms  left  Boston  yester- 
day morning.  On  this  occasion,  all  Boston  people  are  said  to 
have  behaved  well.  Nothing  ever  exceeded  the  malignity  with 
which  abolitionists  and  free  soilers  persecute  all  those  who  en- 
deavor to  have  the  laws  executed.  They  are  insane,  but  it  is  an 
angry  and  vindictive  insanity.  Fortunately  the  number  is  not 
large.  They  made  every  possible  effort  to  protect  themselves 
under  some  show  of  legal  proceedings,  but  all  their  efforts  failed. 
Every  Judge  decided  against  them,  and  their  judicial  opinions 
taken  together  made  a  strong  exhibition  of  legal  authority.  There 
are  Judge  Sprague's  charge,  Mr.  Curtis'  opinion,  and  an  admirable 
judgment  in  the  Supreme  Court  of  Massachusetts,  not  yet  re- 
ported in  full,  and  Judge  Woodbury's  opinion.  At  the  same  time 
also  came  out  Judge  Nelson's  charge.  I  cannot  but  think  that 
these  judgments  will  settle  the  question  with  all  sane  men  in 
Massachusetts.  Now  we  need  one  thing  further  viz. :  the  convic- 
tion and  punishment  of  some  of  the  rescuers.  After  that  shall 
have  taken  place,  it  will  be  no  more  difficult  to  arrest  a  fugitive 
slave  in  Boston  than  to  arrest  any  other  person. 

THE  STORY  ASSOCIATION. 

The  intimate  connection  between  the  politics  of  the  times  and 
the  Law  School  affairs  is  well  illustrated  by  the  episode  of  the 
Story  Association. 

In  the  Report  to  the  Overseers  of  the  Visiting  Committee  made 
in  November,  1849,  written  by  Charles  Sunnier,  attention  was 
called  to  the  fact  that  as  yet  no  adequate  memorial  to  Judge  Story 
had  been  created  in  the  School : 


was  elected  Governor,  by  a  coalition  of  Democrats  and  Free  Soilers. 
Henry  Wilson,  Free  Soiler,  was  made  President  of  the  State  Senate, 
Nathaniel  P.  Banks,  Democrat,  Speaker  of  the  House.  After  a  contest 
lasting  from  Jan.  14  to  April  24  Sumner  was  elected  over  Robert 
C.  Winthrop  to  fill  the  vacancy  caused  by  Webster's  resignation,  to  serve 
from  March  2,  1852.  Robert  Rantoul  was  elected  to  fill  the  unex- 
pired  term  up  to  that  time.  The  feeling  of  the  conservative  section  of  the 
Whig  party  is  voiced  in  a  letter  of  R.  C.  Winthrop  Jan.  12,  1851. 

"If  I  had  the  privilege  of  naming  a  Free  Soil  successor,  it  would  be 
Samuel  Hoar,  who  is  the  most  respectable  man  of  his  party.  Morton 
or  Mills  too,  I  could  cheerfully  make  way  for.  Even  S.  C.  Phillips  or 
Mann  would  not  nauseate  me.  But  I  confess  my  stomach  revolts  from 
Sumner." 

See  Life  of  Robert  C.  Winthrop,  by  R.  C.  Winthrop  Jr. 

(i)  Writings,  Letters  and  Speeches  of  Daniel  Webster,  Vol.  XVI  (1903). 


ANTI-SLAVERY  PERIOD.  169 

In  reviewing  the  history  of  the  School,  the  Committee,  while 
remembering  with  grateful  regard  all  its  instructors,  pause  with 
veneration  before  the  long  and  important  labors  of  Story.  In 
the  meridian  of  his  fame  as  a  judge,  he  became  a  practical  teacher 
of  jurisprudence,  and  lent  to  the  University  the  lustre  of  his 
name.  The  Dane  Professorship,  through  him,  has  acquired  a 
renown  which  places  it  on  the  same  elevation  with  the  Vinerian 
Professorship  at  Oxford,  to  which  we  are  indebted  for  the  Com- 
mentaries of  Sir  William  Blackstone.  These  "twin  stars"  shine 
each  in  different  hemispheres,  but  with  rival  glories. 

Sumner,  for  the  Visiting  Committee,  in  his  Report  of  Nov. 
15,  1850,  again  urged  that: 

It  feels  that  it  ought  not  to  omit  the  opportunity  of  again  call- 
ing attention  to  a  duty  of  the  University  still  neglected  towards 
one  of  the  most  eminent  professors  and  largest  pecuniary  bene- 
factors in  its  history. 

Only  a  few  days  before  his  decease  in  conversation  with  the 
undersigned,  the  eminent  person  in  question  said :  "To  you  after 
my  death  I  look  to  place  my  service  to  the  Law  School  in  their 
proper  light  before  the  public".  This  was  attempted  in  the  report 
of  last  year  and  the  report  is  now  renewed. 

The  Committee  suggested  a  memorial  in  the  shape  of  either  a 
building,  a  fund,  or  a  professorship. 

James  T.  Austin,  for  the  Visiting  Committee,  Jan.  22,  1852, 
reported :  "The  committee  regret  that  its  late  eminent  Professor 
has  not  yet  been  honored  by  some  special  mark  of  public  regard 
alike  demanded  by  his  talents,  his  services,  and  his  pains."(i) 

While  no  action  was  taken  by  the  College  authorities,  a  move- 
ment was  started  among  the  law  students  to  perpetuate  Story's 
name. 

George  Gorham  Williams,  son  of  Samuel  K.  Williams  of  Bos- 
ton, a  Harvard  graduate  of  1848  and  a  member  of  the  senior 
class  in  the  Law  School  in  1850,  a  young  man  of  wealth,  social 
position,  of  great  mental  and  physical  vigor,  and  hearty  enthusi- 
asm, conceived  the  idea  of  an  Association,  to  be  formed  by  the 
students  and  graduates  of  the  School.  As  he  was  one  of  the  lead- 
ers among  the  students,  and  one  of  the  prize  essayists,  his  efforts 
met  with  instant  success ;  and  the  "Story  Association"  was  organ- 
ized in  1850,  with  Hon.  William  Kent  as  President,  and  Williams 
himself  as  Secretary,  the  object,  as  expressed,  being 

(i)  It  is  a  singular  fact,  however,  that  nothing  was  ever  done  by 
the  Corporation  until  the  founding  of  the  Story  Professorship  in  1875. 


170  HARVARD  LAW  SCHOOL. 

for  the  purposes  of  raising  the  standard  of  the  legal  profession, 
of  uniting  its  widely  scattered  members,  of  diffusing  among  them 
an  elevated  feeling  of  nationality,  of  presenting  the  Law  College 
to  the  public  as  an  institution  devoid  of  all  party  and  sectional 
feelings  and  prejudices,  and  of  reviving  the  pleasing  memories 
of  legal  study. 

The  graduates  of  the  School  took  an  active  interest  in  the 
Association  and  joined  in  large  numbers. 

It  was  greeted  with  favor  by  the  College  authorities  and  the 
President  in  his  Annual  Report  stated :  "It  is  believed  that  this 
Association  will  have  a  beneficial  effect  upon  the  School,  as  well 
as  form  an  additional  bond  of  fellowship  among  the  students." 

Its  scope  and  purpose  was  officially  set  forth  in  the -Law  School 
Catalogue  for  the  academic  year  1852-53,  (issued  in  the  fall  of 
1852)  : 

In  the  year  1850,  the  Dane  Law  School  had  from  a  small  begin- 
ning become  so  large  and  important  an  institution  that  many  of  its 
alumni  and  friends  felt  that  an  annual  meeting  of  its  numerous 
pupils  would  be  at  once  pleasing  and  beneficial ;  they  therefore 
organized  an  association  to  consist  of  the  former  and  immediate 
members  of  the  Dane  Law  School,  and  of  such  gentlemen  of  dis- 
tinction in  the  legal  profession  as  they  may  from  time  to  time 
elect  into  their  ranks. 

They  have  given  to  the  association  there  formed  the  name  of 
the  venerated  Story,  a  name  for  many  years  intimately  connected 
with  the  welfare  of  the  School  and  respected  by  all  engaged  in  the 
practice  and  study  of  the  law. 

It  is  the  intention  of  the  Association  to  have  an  annual  celebra- 
tion on  the  day  before  the  College  Commencement,  to  listen  to  an 
oration  from  one  of  its  most  eminent  members  and  to  dine  to- 
gether in  Dane  Hall. 

As  the  Alumni  of  the  Law  School  are  scattered  over  the  whole 
country  it  is  believed  that  the  occasion  which  annually  reunites 
them  will  have  more  than  a  local  or  sectional  interest.  That 
which  in  any  degree  promotes  the  frequent  intercourse  of  the 
members  of  the  profession  throughout  the  country  must  increase 
among  them  the  feeling  of  mutual  regard ;  and  it  is  not  unreason- 
able to  hope  that  the  higher  object  may  be  attained  of  giving  a 
degree  of  uniformity  and  system  to  the  changes  which  legislation 
is  making  in  Common  Law. 

In  June,  1851,  it  was  decided  to  celebrate  the  first  anniversary 
with  an  oration  and  dinner,  and  Rufus  Choate.  then  at  the  height 


ANTI-SLAVERY  PERIOD.  171 

of  his  fame,  accepted  the  Association's  invitation  to  be  orator  of 
the  day.  ( i ) 

Shortly  before  the  date  fixed — July  15,  1851 — and  only  two 
months  after  the  popular  excitement  over  the  Sims  case,  it  be- 
came noised  about  that  Choate  would  endeavor,  in  his  oration,  to 
inculcate  his  views  of  the  proper  course  to  be  pursued  by  young 
men  relative  to  the  Fugitive  Slave  Law,  and  was  to  defend  the 
Law (2).  Charles  Sumner  wrote  at  once  to  the  Association  de- 
clining to  attend. 

The  meeting  was  a  brilliant  success.  The  Association  and  its 
guests  gathered  at  Dane  Hall,  and  at  noon  walked  in  procession, 
headed  by  a  band,  to  the  First  Church.  After  music,  and  a  prayer 
by  Dr.  Walker,  Choate  delivered  his  oration,  which  lasted  until 
two  o'clock.  A  dinner  followed,  at  which  President  Kent  pre- 
sided. Choate  spoke  to  the  toast  of  The  Graduating  Class.  Chief 
Justice  Shaw  replying  for  The  Judiciary  of  Massachusetts,  re- 
ferred to  the  School  as  teaching  national  rather  than  local  law. 
Judge  Samuel  Sumner  Wilde,  of  Massachusetts,  responded  to 
The  Science  of  Lazv;  Sidney  Bartlett,  to  The  Bar  of  Massachu- 
setts. 

Judge  Kent  in  introducing  Professor  Parker,  said,  "that  a  most 
dreadful  pun  had  been  placed  in  his  hands  which  he  would  make 
worse  in  giving ;  but  he  would  propose  the  health  of  the  Profes- 
sors of  the  Law  School  and  address  them  in  the  words  of  Hamlet 
to  the  ghost — 'I  call  thee  father — Royall — Dane'." (3) 

Professor  Parker  spoke  on  The  Lazv  School;  Professor  Par- 
sons, on  Story;  William  Wetmore  Story,  on  The  Association; 
and  Charles  G.  Loring,  on  The  Litchfield  Lazv  School.  One  of  the 
law  students,  J.  W.  A.  Sanford  of  Milledgeville,  Georgia,  re- 
sponded to  a  call  from  the  students  in  a  neat  speech.  Other 
speakers  were  Judge  Edmunds,  of  the  New  York  Supreme  Court, 


(1)  The  originator  of  the   Association,   George   G.   Williams,   did  not 
live  to  see  the  fruit  of  his  efforts  for  he  died  suddenly  June  25,  1851. 

See  notice  in  Lau'  Reporter,  Vol.  XIV. 

(2)  How  conservative  and  impracticable  Choate's  views  on  the  slav- 
ery question  at  this  time  were,  may  be  seen  from  his  speech  at  the  Whig 
convention  held  in   Baltimore  a  year  later,  July  16,  1852,  when  he  urged 
that  the  party  declare  that  "in  its  judgment  the  further  agitation  of  the 
subject  of   Slavery  be  excluded   from  and   forbidden   in  national  politics 
.     .    .    that  the  Federal  Government  close  its  labors  and  retire,  leaving 
it  to  the  firmness  of  a  permanent  judiciary  to  execute  what  the  Legis- 
lature has  ordained.     Why  should  we  not  engage  ourselves  to  the  finality 
of  the  entire  series  of  compromises." 

(3)  Boston  Daily  Advertiser,  July  21,  1851. 


172  HARVARD  LAW  SCHOOL. 

Gen.  Carpenter  of  Rhode  Island,  who  spoke  on  the  talent  shown 
in  the  prize  essays ;  E.  Fitch  Smith  of  New  York ;  Chief  Justice 
Eustis  of  Louisiana ;  and  Richard  H.  Dana,  Jr.  Letters  of  regret 
were  read  from  Ex-Professor  Greenleaf,  Edward  Everett,  and 
Charles  Sumner. 

The  student  committee  of  arrangements  was  Sidney  Bartlett, 
Jr.,  of  Boston,  Richard  T.  Gittings  of  Maryland,  Washington 
Murray  of  New  York,  Alfred  Russell  of  New  Hampshire,  and 
George  R.  Loch  of  Kentucky. 

The  Law  Reporter,  describing  the  occasion,  said(i)  : 

The  Hon.  Rufus  Choate  was  the  orator  of  the  day.  He  "pro- 
posed to  speak  particularly  of  a  single  one  of  the  new  duties 
which  devolve  on  students  of  law  in  view  of  the  present  state  of 
affairs,  namely,  to  extend  their  thoughts  and  studies  somewhat 
to  the  ethical  grounds  on  which  the  national  system  of  the  Repub- 
lic is  founded ;  to  defend  the  Constitution  and  law  of  the  country 
on  the  principles  of  a  sound  and  elevated  morality ;  to  guide  and 
enlighten  the  general  conscience  in  the  theory  and  practice  of  all 
the  civil  duties."  His  address  was  certainly  brilliant,  able,  and 
eloquent,  and  above  all  the  other  merits  was  its  earnest  and  patri- 
otic tone.  It  was  listened  to  attentively  by  a  full  audience  and 
frequently  applauded  with  hearty  enthusiasm.  After  the  oration 
a  neat  ode  written  for  the  occasion  by  Hon.  George  Lunt  was 
sung.  At  the  conclusion  of  the  literary  exercises,  the  members  of 
the  Society  and  their  guests  partook  of  a  dinner  in  the  Law 
Library.  Judge  Kent,  President  of  the  Association,  presided,  and 
many  pleasant  and  profitable  speeches  were  made. 

From  the  above  account,  no  one  would  suppose  that  this  cele- 
bration had  aroused  the  bitterest  of  political  feeling,  or  that  the 
Story  Association  had  been  turned  from  a  professional  into  a 
partisan  gathering. 

But  the  anti-slavery  men  of  the  day  were  in  such  a  supersensi- 
tive  condition  that  they  could  brook  no  reference  that  might  be 
construed  as  even  remotely  adverse  to  their  cause,  and  they  re- 
sented the  attacks  they  professed  to  find  in  the  speeches.  Choate's 
oration  and  some  of  the  remarks  made  at  the  dinner  were  at  once 
made  the  subjects  of  denunciation.  While  it  is  true  that  the  ora- 
tion contained  no  mention  of  Story,  the  political  criticism  directed 
at  it  was  in  reality  unjustifiable.  It  was  a  noble  and  dignified  ap- 
peal to  young  men,  and  its  references  to  the  political  situation 
were  not  such  as  would  have  offended  or  disturbed  anyone  in  or- 


(i)     Law  Reporter,  Vol.  XIV  (1851). 


ANTI-SLAVERY  PERIOD.  173 

clinary  times.  Nevertheless  the  Commonwealth,  a  bitter  anti- 
slavery  newspaper,  contained  the  following  outbreak  in  its  issue 
of  July  17,  1851: 

We  gave  yesterday  a  sketch  of  the  celebration  of  the  Story  As- 
sociation. Since  that  time  facts  have  come  to  our  knowledge 
relating  to  this  occasion,  which  seems  to  have  been  for  the  most 
part  managed  by  hands  that  "knew  not"  Story,  or  at  all  to  have 
sympathized  in  his  ardent  love  for  the  progress  and  triumph  of 
Liberty. 

The  celebration  turned  out  to  be  little  else  than  a  hunker,  pro- 
slavery  speech-making  occasion,  or  rather  there  was  a  conspiracy 
to  make  it  such,  the  success  of  which  was  somewhat  equivocal. 
Mr.  Choate's  address  was,  as  we  have  before  described  it,  a 
rhapsodical  speech  in  favor  of  the  Fugitive  Slave  Bill  and  against 
the  Free  Soil  principles  and  men.  It  was  in  the  flower  of  his 
most  fallacious  and  sarcastic  manner  and  was  an  insult  to  every 
man  of  Free  Soil  principles  who  was  present.  It  became  known 
on  the  day  before  that  this  would  be  the  case,  and  some  of  the 
distinguished  and  attached  friends  of  the  Law  School  and  of 
Judge  Story  staid  away  on  that  account.  After  the  exercises, 
came  the  dinner.  Here  again  the  speeches  savored  occasionally 
of  the  oration.  Although  from  such  men  as  Judges  Shaw  and 
Wilde  and  Charles  G.  Loring,  nothing  came  or  was  likely  to  come 
that  was  not  pertinent,  yet  there  was  no  equal  actual  offence  until 
the  speech  of  Gen.  Carpenter  of  R.  I.,  who  in  a  tone  the  most 
emphatic  and  insolent,  denounced  the  Free  Soil  Party,  "as  a  mis- 
erable, conceited,  fanatical  faction",  and  alluded  triumphantly  to 
the  handsome  punishment  they  had  received  from  the  orator  of 
the  day. 

Richard  H.  Dana,  Jr.,  in  his  diary  gives  this  interesting  view  of 
the  occasion : 

July  15.  This  day  was  the  anniversary  of  the  Story  Associa- 
tion. Choate  delivered  the  oration.  It  was  generally  understood 
the  afternoon  before  that  he  was  preparing  something  on  the 
Fugitive  Slave  Law  and  against  the  Free  Soil  party.  Sumner  told 
me  so  and  would  not  go.  I  begged  him  to  go  to  the  dinner,  and 
told  him  that  if  anything  was  said  against  us  he  would  make 
fight.  But  he  declined. 

As  I  went  up  the  platform,  Choate  shook  hands,  and  said,  "I 
am  sorry  you  are  coming.  I  shall  have  to  offend  you.  You  had 
better  reconsider."  And  sure  enough,  the  oration  was  a  defence 
of  the  administration  policy  as  to  slavery,  and  an  attack  on  the 
Free  Soil  party  and  principle.  The  plan  was  to  prove  that  the 
preservation  of  the  Union,  in  the  scale  of  an  enlightened  morality, 
was  a  greater  and  a  higher  virtue  than  that  which  refused  to 


174  HARVARD  LAW  SCHOOL. 

surrender  a  fugitive  slave,  assuming  of  course,  that  the  two  could 
not  coexist.  It  was  an  improper  and  inappropriate  thing,  and  I 
think  generally  felt  to  be  so.  This  was  an  occasion  when  all  party 
questions  were  to  be  excluded  and  the  graduates  of  the  School  to 
meet  as  brothers  on  common  ground,  to  be  addressed  on  some 
subject  of  common  interest.  President  Quincy  and  Mr.  Hoar 
were  the  two  oldest  men  present,  both  Free  Soilers,  and  a  strik- 
ing commentary  on  the  contemptuous  manner  in  which  Choate 
spoke  of  the  youthful  enthusiasm  and  inexperience  of  the  Free 
Soil  party.  Neither  of  these  gentlemen  attended  the  dinner. 

At  the  dinner  there  was  nothing  offensive,  except  the  speech 
of  General  Carpenter  of  Rhode  Island,  who  spoke  of  "that  miser- 
able, conceited,  fanatical,  faction,"  etc.  In  my  remarks  I  alluded 
to  this  in  a  pleasant  way,  but  so  that  they  should  feel  it.  Mr. 
Story,  in  returning  thanks  for  his  father's  memory,  spoke  of 
introducing  "a  regard  for  liberty  in  law,  and  conscience  into  legis- 
lation." Judge  Hoar's  toast  was  also  to  the  point,  about  love  of 
liberty,  reverence  for  law  and  fear  of  God.  On  the  whole,  they 
had  the  disgrace  of  making  an  ill-mannered  attack,  and  we  rather 
had  the  last  word. 

July  17.  Phi  Beta.  ...  At  the  dinner  President  Quincy 
was  first  called  up,  and  received,  all  standing.  He  pronounced  a 
feeling  eulogy  on  Judge  Story  as  the  real  founder  of  the  Law 
School,  and  concluded  by  saying  that  he  had  been  forced  into 
this  by  an  occurrence  of  a  recent  date — that  he  had  attended  the 
exercises  of  the  Story  Association,  and  with  deep  regret  heard  an 
oration  of  which  he  would  say  nothing  except  that  it  had  not  one 
word  about  Joseph  Story,  or  the  Law  School,  or  Mr.  Dane. 

Mr.  Story  in  replying  gave  "Josiah  Quincy,  always  true  to  lib- 
erty, virtue  and  friendship." 

While  the  memory  of  their  past  Professor  was  thus  being  kept 
alive  by  the  law  students,  their  high  regard  for  the  present  Pro- 
fessors was  not  wanting.  After  five  years  service,  both  Parker 
and  Parsons  had  acquired  great  popularity  with  their  pupils.  The 
characteristics  of  the  two  men  were  as  widely  different  as  could 
possibly  be;  but  the  influence  of  both  was  great,  not  only  as 
teachers  but  as  men.  This  was  now  shown  by  the  pleasant  com- 
pliment paid  to  them  when,  in  1852,  their  pupils  requested  them 
to  allow  their  portraits  to  be  painted,  for  presentation  to  the 
Corporation  by  the  law  students.  ( i)  These  portraits  were  accepted 
with  thanks  by  the  Corporation,  December  21,  1852,  and  were 
hung  in  Dane  Hall.  They  are  now  on  the  walls  of  Austin  Hall. 

An  effort  was  made  by  the  Story  Association,  May  28,  1853,  to 

(i)  See  letter  dated  December  21,  1852,  from  Charles  C.  Graf  ton 
(L.  S.  1851-54)  representing  a  committee  of  students  presenting  a  por- 


ANTI-SLAVERY  PERIOD.  175 

have  the  marble  bust  of  Story,  then  in  the  College  Library,  re- 
moved to  the  Dane  Hall  Lecture  Room,  on  the  ground  that  the 
"only  portrait  there  is  by  Page  of  the  kit  cat  size,  and  a  plaster 
cast.  The  portrait  is  thrown  in  the  shade  by  the  full  length  pic- 
tures of  George  Washington  and  Mr.  Webster,  which  hang  on 
either  side  of  it."(i)  This  request,  however,  the  Corporation 
refused. 

After  this,  the  Story  Association  seems  to  have  dropped  out  of 
existence  and  out  of  memory. (2)  Its  life  had  been  somewhat  in- 
effectual, for  it  had  never  recovered  from  its  baptism  of  politics ; 
and  the  Choate  dinner  so  tinged  its  after-history  that  Sumner  and 
others  declined  to  deliver  the  oration  in  1852.  The  only  official 
reference  to  the  Association  in  the  College  Records  is  the  previ- 
ously quoted  announcement  in  the  College  Catalogue  of  1852-53, 
to  which  was  appended  a  copy  of  its  constitution  and  a  list  of 
officers,  as  follows : 

Hon.  James  L.  Petigru  of  South  Carolina,  President;  Hon. 
John  H.  Clifford  of  Massachusetts,  Hon.  Timothy  Walker  of 
Ohio,  Hon.  Reverdy  Johnson  of  Maryland,  Vice-Presidents ; 
Frederick  H.  Winston  of  Georgia,  Corresponding  Secretary; 
Thornton  K.  Lothrop  of  Massachusetts,  Recording  Secretary. 

LANGDELL  AND  HIS  FELLOW  STUDENTS. 

The  years  1851,  1852  and  1853  were  especially  interesting  both 
in  the  annals  of  the  law  and  of  the  Law  School. 

Among  the  men  in  the  School  about  this  tirne,  prominent  in  later 
days,  were  Melville  W.  Fuller  (L.  S.  1854-55),  Dorman  B.  Eaton 
(L.  S.  1849-50),  William  Crowninshield  Endicott  (L.  S.  1849- 
50),  Horace  Davis  (L.  S.  1850-51),  George  M.  Stearns  (L.  S. 
1850-51),  Asa  French  (L.  S.  1851-53),  Addison  Brown  (L.  S. 
1853-55),  James  C.  Carter  (L.  S.  1851-53)  John  B.  Felton  (L.  S. 
1849-50,  1852-53)  ;  Nicholas  St.  John  Green  (L.  S.  1851-53), 
William  G.  Choate  (L.  S.  1852-54),  Joseph  H.  Choate  (L.  S. 
1852-54),  James  B.  Eustis  (L.  S.  1852-54),  Sylvester  Pennoyer 

trait  of  Parsons  by  Joseph  Ames.     See  also  letters  dated  December  22, 
1852,   from   Sidney  Bartlett,   Jr.,    (L.   S.    1850-51),  presenting  portrait  of 
Parker. 
Harv.  Coll.  Papers,  2nd  Series,  Vol.  XIX. 

(1)  See  letter  of  Thornton  K.  Lathrop   (L.  S.   1851-53),  transmitting 
petition  of  the  Story  Association  to  the  Corporation — Harv.  Coll.  Papers, 
2nd  Series,  Vol.  XX. 

(2)  None  of  the  law  students  of   1851-1865  to  whom  the  author  has 
written  have  been  able  to  recall  anything  about  the  Association. 


176  HARVARD  LAW  SCHOOL. 

(L.  S.  1853-54),  Charles  Doe  (L.  S.  1853-54),  Charles  C.  Graf- 
ton  (L.  S.  1851-54),  William  E.  Chandler  (L.  S.  1853-55),  John 
D.  Washburn  (L.  S.  1855-56),  and  George  O.  Shattuck  (L.  S. 
1852-54). 

Perhaps  the  most  interesting  of  all  the  men,  however,  who 
entered  the  School  in  1851  was  a  young  student  named  Chris- 
topher Columbus  Langdell.  Langdell  was  born  in  New  Boston, 
N.  H.,  May  22,  1826.  His  lineage  was  Scotch-Irish,  and  Scottish 
traits  were  prominent  throughout  his  career.  His  great  grand- 
father, a  farmer,  had  removed  from  Beverly,  Mass.,  to  New 
Hampshire,  in  1771.  Langdell  attended  for  a  short  time  an 
academy  in  Hancock,  N.  H.  Determined  to  secure  an  adequate 
education,  he  earned  money  by  working  in  the  Manchester  Mills 
in  1844.  Aided  by  the  indefatigable  efforts  of  an  older  sister,  he 
entered  Exeter  Academy  in  the  spring  of  1845.  By  means  of 
money  earned  by  working  round  the  Academy  buildings,  and 
from  a  scholarship,  he  finished  his  course  there. 

In  1848,  he  entered  Harvard  College  as  a  sophomore  in  the 
Class  of  1851,  and  by  the  end  of  the  year  ranked  second  in  the 
class.  In  December,  1849,  however,  from  lack  of  funds  he  was 
obliged  to  leave  College.  After  doing  some  manual  labor  and  a 
little  teaching,  he  began  the  study  of  law  in  the  office  of  Stickney 
and  Tuck,  in  Exeter,  N.  H. 

He  entered  the  Harvard  Law  School,  November  6,  1851. 

From  the  outset,  both  Professors  and  students  recognized  him 
as  a  man  of  unusual  ability. (i) 

On  September  4,  1851,  the  Corporation  adopted  the  following 
vote,  recommended  by  Professors  Parsons  and  Parker : 

That  each  Professor  of  the  Law  School  may  nominate  to  this 
Board  a  student  whose  pecuniary  situation  may  require  aid  and 
who  shall  be  employed  in  services  useful  to  him  and  shall  be  com- 
pensated therefor  by  a  remission  of  a  part  or  the  whole  of  his  tui- 
tion fees  until  further  order  by  the  Corporation. 

The  purpose  of  this  vote  was  twofold,  first,  to  assist  students 
who  were  unable  to  remain  in  the  School,  second,  to  take  some  of 
the  detailed  work  from  the  shoulders  of  the  Professors.  Under 
this  vote,  the  Corporation,  for  many  years,  remitted  the  tuition 
fees  of  from  two  to  four  students  each  year ;  and  the  first  remis- 


(i)     See  Professor  Langdell — His.   Student  Life,  by  Jeremiah   Smith, 
Harv.  Law  Rev.,  Vol.  XX. 


ANTI-SLAVERY  PERIOD.  177 

sion  was  made  December  27,  1851,  on  the  suggestion  of  Professor 
Parker,  to  Langdell.  ( i ) 

In  1852,  he  was  made  Librarian,  which  position  he  retained 
three  years  (1852-54).  He  was  a  member  of  the  Coke  Law  Club, 
one  of  the  two  most  popular  and  distinguished  Clubs. 

It  is  interesting  to  note  that  in  1852  he  argued  three  cases  be- 
fore the  Moot  Courts,  losing  all  three. (2)  The  first  case  (one  of 
fraudulent  representation)  was  argued  by  him,  in  Moot  Court, 
January  6,  1852,  with  George  H.  Wood,  against  John  Ordronaux 
and  Adna  B.  Underwood.  Langdell  submitted  a  very  elaborate 
brief  citing  Cro.  /arc.,  Yelverton,  Rolle  Abr.  Price,  Holt  N.  P. 
Judge  Parker  decided  against  him.  The  second  case  (one  of  a 
lapsed  devise)  was  argued  by  him  with  Charles  L.  Flint,  against 
John  D.  Taylor  and  John  B.  D.  Cogswell,  April  15,  1852,  before 
Professor  Parsons.  The  third  case  (one  of  warranty  on  sale  by 
sample)  was  argued  by  him  against  Frederick  H.  Winston,  June 
4,  1852,  before  Judge  Loring. 

Parsons,  who  at  this  time  was  writing  his  famous  work  on  Con- 
tracts, recognized  Langdell's  remarkable  powers  as  a  student  of 
the  law  and  employed  him  very  largely  in  writing  the  notes  and 
collecting  the  material  for  his  book.  Co-laborers  with  Langdell 
is  this  work  of  assisting  Professor  Parsons  were  William  E. 
Chandler  (L.  S.  1853-55),  later  Senator  from  New  Hampshire, 
and  John  Lathrop  (L.  S.  1853-55)  ^ater  Judge  °f  the  Massachu- 


(1)  See  letter  of  Parker  to  the  Corporation,  Dec.  15,  1851,  Harv.  Coll. 
Papers,  2nd  Series,  Vol.  XVIII. 

"I  have  the  honor  to  nominate  to  the  Board  Mr.  Christopher  Columbus 
Langdell  of  New  Boston,  N.  H.,  as  a  person  well  entitled  to  the  benefit 
of  the  vote  of  the  Corporation  passed  September  4,  1851.  He  has  come 
to  us  well  recommended  and  is  desirous  of  availing  himself  of  the  advant- 
ages of  the  Law  School ;  but  his  pecuniary  circumstances  are  such  that 
he  cannot  well  do  so  without  a  remission  of  the  fees  for  tuition." 

Three  years  later,  Sept.  20,  1854,  the  Professors  recommended  (See 
Harv.  Coll.  Papers,  2nd  Series,  Vol.  XXI)  that  the  Law  Faculty  be  al- 
lowed to  make  special  agreements  with  limited  number  of  needy  students, 
say  six  each  term,  to  take  their  personal  obligation  for  tuition,  with 
the  understanding  that  payment  is  to  be  made  whenever  students  shall  be 
of  sufficient  ability.  "Each  year  many  applications  from  students  who 
would  come  if  they  could  get  employment." 

The  Corporation  voted  March  31,   1855,  as  follows: 

"Voted  that  the  Law  Faculty  be  authorized  to  allow  credit  for  tui- 
tion fees  either  wholly  or  in  part  to  students  in  the  Law  School  not  ex- 
ceeding six  at  one  time,  for  such  time  and  on  such  terms  as  they  shall 
deem  expedient." 

(2)  See  Moot  Court  Book   (March  13,  1851  to  June  22,  1852)   owned 
by  Charles  R.  Codman  (L.  S.  1851-52),  and  loaned  to  the  author  (1907). 

12 


178  HARVARD  LAW  SCHOOL. 

setts  Supreme  Court.  Judge  R.  M.  Benjamin  (L.  S.  1854-55) 
writing  to  the  author  (1908)  says: 

Parsons  had  a  room  at  the  right  of  the  hall  leading  to  the 
Library  in  Dane  Hall,  and  every  morning  on  a  long  table  in  his 
room  could  be  seen  a  number  of  law  reports  with  place  marks.  It 
was  understood  that  these  reports  had  been  collected  for  him  from 
digests  and  indexes  by  C.  C.  Langdell,  who  was  then  the  Law 
Librarian.  From  these  reports  Prof.  Parsons  prepared  the  text 
of  his  work  and  selected  the  cases  for  his  notes. 

Among  Langdell's  successors  in  collaborating  with  Parsons  on 
the  latter s  Mercantile  Law  (published  in  1856)  and  Maritime 
Law  (published  in  1859)  were  Robert  R.  Bishop  (L.  S.  1856-57), 
now  judge  of  the  Superior  Court  in  Massachusetts,  Daniel  W. 
Wilder  (L.  S.  1857-58)  and  several  others  who  have  later 
achieved  distinction  in  the  profession.  One  of  these  associates 
has  written  to  the  author : 

The  copy  left  on  me  this  impression, — a  brief  margin  of  text 
by  Parsons,  clearly  and  neatly  written  at  the  head ;  then  three  or 
four  times  the  space  in  text  and  citations  in  the  inky,  strong  hand 
of  Langdell — a  name  then  first  heard  by  me.  It  appeared  to  me 
mainly  the  work  of  Langdell. 

Hon.  Joseph  H.  Choate  (L.  S.  1852-54)  writes  (1907)  : 

Professor  Langdell  was  at  that  time  the  Librarian  and  was 
assisting  Mr.  Parsons  in  getting  out  the  notes  of  his  work  on 
Contracts,  of  which  I  have  often  thought  that  the  notes  were  the 
most  valuable  part.  He  was  a  tremendous  student,  following  the 
system  of  studying  the  cases  and  not  caring  much  about  text 
books.  .  .  .  He  was  looked  upon  in  the  Law  School  as  a 
prodigy  of  learning  and  master  of  research. 

Right  Rev.  Charles  C.  Grafton  (L.  S.  1851-54)  writes  (1907)  : 

Langdell  had  stood  high  in  the  undergraduate  department,  but 
had  not  means  to  carry  him  through.  He  came  down  to  Cam- 
bridge with  only  $20  in  his  pocket. 

Shattuck  gave  him  a  couch  to  sleep  on  in  his  own  room,  and 
the  small  amount  he  had  lasted  him  for  nearly  a  term  in  provid- 
ing his  meals ;  but  when  he  came  to  be  Librarian,  though  the 
stipend  was  small  he  became  comfortable.  We  students  had  a 
great  admiration  for  his  marvellous  diligence  and  legal  acumen. 
When  one  of  the  Professors  had  decided  a  moot  case  differently 
from  the  opinion  Langdell  had  given,  we  who  were  his  special 
friends  always  contended  he  was  in  the  right,  which  he  most 
modestly  refused  to  accept. 


ANTI-SLAVERY  PERIOD.  179 

He  was  very  kind  to  me  and  we  became  intimate.  When  he 
was  editing  Professor  Parsons'  book  on  Contracts,  he  gave  me  a 
portion  of  it  to  do.  The  Professor's  method  was  to  give  out  cer- 
tain portions  of  his  book  to  some  of  the  students,  who,  when  they 
had  completed  their  works,  passed  it  over  to  Langdell  for  correc- 
tion and  revision.  I  remember  I  spent  six  months  studying  all 
the  cases  on  the  sixth  section  of  the  statute  of  frauds.  When  I 
brought  my  heap  of  work  to  Langdell,  he  was  kind  enough  to 
commend  it  in  part,  but  gave  me  a  piece  of  advice  which  I  have 
found  profitable  through  life.  I  had  pursued  my  legal  specula- 
tions far  and  wide,  and  Langdell  said  to  me,  "Grafton,  keep  on  the 
broad  highway.  You  might  spend  a  lifetime  trying  to  solve  legal 
questions  in  suppositious  cases,  and  then  practice  a  lifetime,  and 
not  one  of  them  would  come  up  to  you  in  practice."  He  used  to 
get  me  to  read  aloud  with  him  evenings,  along  with  Shattuck,  for 
I  had  the  small  accomplishment  of  reading  well.  He  taught  us 
how,  from  his  point  of  view,  to  study  law.  He  began  with  the 
cases  of  leading  import.  We  had  to  read  them,  and  then  state  the 
points  to  him.  He  made  us  read  all  the  leading  authorities  on  such 
cases,  and  so  he  pounded  certain  principles  of  law  into  us.  It 
was  from  this  that  he  developed  subsequently  his  book  on 
"Cases". 

Through  his  kindness  to  me.  I  was  elected,  though  one  of  the 
youngest,  into  the  Coke  Club.  I  think  I  pleased  him  by  the 
defense  I  made  when  on  the  wrong  side  of  a  case.  In  the  Club, 
when  I  joined  it  were  the  two  Choates — the  late  ambassador,  his 
brother,  subsequently  the  Judge,  James  C.  Carter,  Langdell, 
Chandler,  who  was  afterwards  Senator,  Shattuck,  who  became 
a  distinguished  lawyer  in  Boston,  and  I  think,  Hurlburt. 

Langdell  used  to  shut  himself  in  the  library  on  Sundays,  and 
read  all  day. 

Another  of  Langdell's  contemporaries  tells  of  finding  him  one 
day  in  an  alcove  in  the  Dane  Hall  Library  absorbed  in  a  black 
letter  folio,  and  of  Langdell's  looking  up  and  exclaiming  "Oh,  if 
I  only  could  have  lived  in  the  time  of  the  Plantagenets." 

Though  he  roomed  in  Divinity  Hall,  he  was  so  constantly  and 
so  late  at  night  in  the  Law  Library,  that  students  used  to  say  that 
he  slept  on  the  library  table. 

And  it  has  been  well  said  of  him  that :  "He  browsed  among  the 
reports  as  a  hungry  colt  browses  among  the  clover.  The  year 
books  in  particular  enthralled  him." 

In  1853,  Langdell's  services  in  the  Library  had  proved  so  valu- 
able, and  his  work  had  increased  so  greatly  that  on  Parson's  rec- 
ommendation the  Corporation  voted,  Dec.  23,  1853,  that  his  tuition 


i8o  HARVARD  LAW  SCHOOL. 

fees  should  be  remitted  for  the  year. (i)  At  the  end  of  the 
academic  year,  1852-53,  he  received  his  degree  of  LL.B. ;  but  he 
continued  another  year  in  the  School  as  a  graduate  student,  assist- 
ant to  Professor  Parsons  and  also  as  Librarian. 

When  he  finally  left  in  1854,  the  College  paid  him  the  unusual 
honor  of  conferring  upon  him  the  honorary  degree  of  A.  M.,  this 
action  being  taken  at  the  earnest  solicitation  of  Professor  Par- 
sons, who  wrote  to  President  Walker,  June  3,  1854,  the  following 
interesting  letter (2)  : 

Allow  me  to  present  the  name  of  Mr.  Christopher  Columbus 
Langdell  as  a  candidate  for  the  degree  of  Master  of  Arts  at  the 
approaching  Commencement. 

Of  this  gentleman's  life  and  character  before  he  'came  to  the 
Law  School  you  know  as  much  as  I  do.  He  has  been  in  the 
School  between  two  and  three  years ;  most  of  the  time  he  has 
held  and  now  holds  the  office  of  Librarian.  I  believe  all  who  are 
connected  with  the  School  will  agree  with  me,  that  no  one  of  our 
graduates,  for  some  years  certainly,  surpasses  him  and  few  equal 
him.  I  have  no  hesitation  in  saying  that  for  capacity,  industry, 
acquisition,  perfectly  good  conduct,  and  all  the  elements  of  merit 
which  a  candidate  for  this  honor  could  present,  I  should  consider 
him  certainly  the  equal  of  any  young  man  whom  I  know. 

It  may  be  remembered  also,  that  he  would  now  have  had  this 
honor  in  due  course,  and  with  a  high  rank  of  scholarship,  if  he 
had  not  been  compelled  to  leave  his  class  by  extreme  poverty ; 
from  which  he  has  now  rescued  himself  by  his  own  exertions. 

•  I  would  add  that  he  has  received  propositions  to  go  to  New 
York  and  enter  at  once  upon  extensive  business,  and  has  them 
now  under  consideration.  And  if  he  could  carry  with  him  this 
degree  it  would  be  especially  useful. 

A  vivid  description  of  life  at  the  School  at  this  period  is  given 
by  Hon.  Charles  E.  Phelps  (L.  S.  1852-53),  now  Judge  of  the 
Supreme  Bench  of  Baltimore  City,  Maryland,  in  a  letter  to  the 
author (1908)  : 

I  went  from  Princeton  to  Cambridge  in  1852.  Age  19.  Al- 
though several  years  had  passed  since  the  death  of  Judge  Story, 
there  were  traditions  and  anecdotes  current  which  kept  his 
memory  green.  The  one  which  I  most  distinctly  remember  as 
illustrating  his  geniality  and  sense  of  humor  was  as  follows :  On 
a  blustering  winter  morning,  coming  into  the  vestibule  of  the  Law 

(1)  See   letters   of    Parsons,    Dec.   23,    1853,   Harv.    Coll.   Papers,   2nd 
Series,  Vol.  XX. 

(2)  See  Harv.  Coll.  Papers,  2nd  Series,  Vol.  XXI. 


ANTI-SLAVERY  PERIOD.  181 

School,  and  stamping  the  snow  from  his  feet,  he  would  say  to  the 
students,  who  gathered  around  him  to  help  him  off  with  his  over- 
coat, "Well,  gentlemen,  I  declare,  this  is  one  of  those  days  when 
a  man  would  rather  facit  per  alium  than  facit  per  se." 

In  reading  this,  of  course,  the  old  English  or  Oxford  pronuncia- 
tion of  Latin  then  prevalent  will  have  to  be  followed.  To  attempt 
to  apply  the  modern  importation  of  the  continental  broad  a  and 
hard  c  would  make  strange  work  with  the  Judge's  pun. 

I  remember  another  anecdote  not  strictly  connected  with  the 
Law  School,  but  which  is  characteristic  of  the  old  gentleman.  He 
was  very  sociable  and  fond  of  making  an  evening  call.  Upon  one 
of  these  occasions  the  story  goes  that  at  a  late  hour  he  took  out 
his  watch,  and  said : 

"Bless  my  soul  I  had  no  idea  it  was  so  late,  the  time  has  passed 
so  pleasantly." 

The  Judge  had  done  all  the  talking  himself. 

Notwithstanding  these  amiable  reminiscences,  I  found  at  Cam- 
bridge a  distinct  anti-Story  reaction.  Especially  among  the  older 
students  there  was  a  marked  disposition  to  discount  his  reputa- 
tion. Criticism  was  mainly  directed  upon  his  published  works. 

There  was  no  sympathy  with  his  appreciation  of  the  Roman 
Civil  Law.  Fault  was  found  with  his  copious  citations  from  the 
unknown  works  of  foreign  jurists.  A  little  of  Domat,  a  little  of 
Pothier,  judiciously  cited,  might  perhaps  have  been  tolerated,  but 
when  it  came  to  padding  the  text  with  page  after  page  of  Latin 
copied  from  continental  authors,  whose  names  had  never  been 
heard  of,  the  sturdy  spirit  of  the  Old  English  Common  Law  then 
dominant  at  Cambridge,  revolted.  They  did  not  know  anything 
about  Huberns,  Bartolus,  and  Voet,  Matthoeus,  and  Maevius,  and 
what  was  more,  they  did  not  want  to  know  anything  about  them. 

The  library  of  the  Law  School  was  more  completely  equipped 
with  the  literature  of  the  Roman  Civil  law  than  any  other  library 
in  this  country  at  that  time.  That  of  course  was  owing  to  Judge 
Story's  influence.  It  would  be  safe  to  say,  that  not  one  of  the 
works  of  these  foreign  jurists  was  read  by  any  student  in  my 
time,  and  that  very  few  of  them  were  ever  taken  down  from  the 
shelf. 

The  system  of  instruction  was  crude.  Each  Professor  had  a 
curriculum  of  his  own  which  he  went  through,  and  new  students 
were  expected  to  catch  on  at  whatever  point  happened  to  be 
reached.  One  of  the  first  text  books  put  in  my  hands  under  this 
system  was  Marshall  on  Marine  Insurance,  a  book  now  forgotten. 
The  contents  consisted  largely  of  a  citation  of  cases  and  I  had 
great  difficulty  in  coping  with  them  at  a  time  when  I  had  not  pro- 
gressed far  enough  in  elementary  instruction  to  distinguish  be- 
tween covenant  and  assumpsit. 

The  Librarian  was  no  less  a  personage  than  C.  C.  Langdell,  a 
book  worm,  if  ever  there  was  one.  He  always  wore  over  his  eyes 


182  HARVARD  LAW  SCHOOL. 

a  dark  shade  with  a  green  lining.  I  don't  remember  ever  seeing 
him  without  it. 

There  were  about  a  dozen  of  us  who  took  our  hash  together  at 
a  boarding  house  on  Brighton  Street,  and  of  these  Langdell  was 
the  presiding  genius.  At  table,  nothing  was  talked  but  shop. 
Cases  were  put  and  discussed,  and  I  have  sometimes  thought  that 
from  these  table  discussions  Langdell  got  the  germ  of  the  idea 
that  he  later  developed  into  the  case  system  of  instruction  which 
has  made  his  name  famous  both  here  and  abroad.  As  to  his 
personality  there  was  nothing  impressive,  certainly  nothing  to 
give  the  slightest  promise  of  his  future  distinction.  Although 
somewhat  inclined  to  pedantry  and  not  very  broad-minded,  he 
was  gentle,  modest  and  obliging,  and  everybody  was  fond  of 
Langdell.  ( I ) 

As  to  the  Professors,  Judge  Parker  was  the  favorite  of  the 
older  students,  Professor  Parsons  of  the  younger.  The  latter 
was  in  my  opinion  the  better  teacher.  He  was  then  giving  us  his 
forthcoming  work  on  Contracts,  by  instalments.  His  family  and 
mine  being  connected  by  marriage,  I  was  on  a  very  sociable  foot- 
ing with  him.  Judge  Parker  was  considered  by  the  older  students 
more  learned  and  profound.  His  opinion  as  Chief  Justice  of 
New  Hampshire,  in  the  case  of  Britton  vs.  Turner,  6  N.  H.,  was 
boasted  as  a  consummate  masterpiece  of  judicial  reasoning.  I 
have  read  this  decision  over  recently,  and  must  admit  that  it  com- 
pares favorably  with  the  best  work  of  Shaw,  Kent,  Gibson  or 
Ruffin.  Although  less  distinguished  than  either  of  his  colleagues, 
Professor,  afterwards  Judge  Loring,  was  an  interesting  lecturer. 
I  find  in  my  note  book  an  abstract  of  one  of  his  lectures  on 
"Wills",  topic,  "Insanity",  which  shows  that  Phrenology  was  still 
considered  a  science  in  the  middle  of  the  Nineteenth  Cen- 
tury. .  .  . 

As  the  summing  up  of  the  whole  matter  I  will  say  that  I 
derived  more  benefit  and  more  inspiration  from  talks  and  walks 
with  fellow  students  than  from  lectures  and  from  books,  although 
these  were  of  course  the  indispensable  foundation. 

In  May,  1852,  the  Law  School  students  had  the  privilege  of 
receiving  a  visit  from  Louis  Kossuth,  the  Hungarian  patriot  who 
had  landed  in  this  country,  the  previous  December.  (2)  Of  this 

(1)  In  C.  C.  Langdell,  by  James  Barr  Ames,  in  Great  American  Law- 
yers, Judge  Phelps  is  quoted  as  saying: 

"Over  our  sausage  and  buckwheat  or  whatever  it  was,  we  talked  shop, 
nothing  but  shop,  discussed  concrete  cases,  real  or  hypothetical,  criticised 
or  justified  decisions,  affirmed  or  reversed  judgments.  From  these  table 
talks  I  got  more  stimulus,  more  inspiration,  in  fact,  more  law,  than  from 
lectures  of  Judge  Parker  and  Professor  Parsons." 

(2)  Alexander  Wilson    (L.  S.   1851-53)   writes  to  the  author    (1907)  : 
"Whenever  it  was  known  that  Rufus  Choate  was  engaged  in  the  trial 

of  an  interesting  case,  many  of  the  law  students  went  into  the  city  to 
hear  him.  I  also  had  the  pleasure  of  hearing  Kossuth,  Webster  and 


ANTI-SLAVERY  PERIOD.  183 

visit,  Longfellow  records  in  his  diary  an  interesting  account : 

April  27,  1852.  This  is  the  day  of  Kossuth's  reception  in 
Boston.  From  the  balcony  of  39  Beacon  Street  we  saw  the  pro- 
cession and  the  great  Magyar  bowing  to  the  crowd ;  a  handsome 
bearded  Hungarian  with  a  black  plume  in  his  hat  and  clad  in 
black  velvet. 

May  4,  1852.  College  Exhibition!  At  half  past  one,  Kossuth 
came  with  Governor  Boutwell.  Felton  and  myself  received  them 
at  the  door  and  ushered  them  into  the  Chapel  amid  enthusiastic 
shouts.  The  English  oration  had  begun.  The  subject  was  "Un- 
successful Great  Men",  very  well  handled  and  odd  enough  at  the 
moment.  The  President  (Sparks)  presented  Kossuth  to  the 
students,  and  the  Magyar  in  his  deep,  sweet,  pathetic  voice  said  a 
few  words,  with  great  applause. 

On  October  24th,  1852,  occurred  the  death  of  Daniel  Webster 
— an  event  which  produced  a  profound  impression  on  the  law  stu- 
dents. 

The  opening  words  of  one  of  the  most  notable  addresses  made 
on  the  subject — a  lecture  by  Professor  Parker  on  Daniel  Webster 
as  a  Jurist,  show  the  tribute  paid  by  the  School : 

We  deviate,  today,  from  the  ordinary  discussions  of  this  place, 
that  we  may  pay  a  further  tribute  to  the  memory  of  one  who  but 
a  short  time  since  held  a  commanding  position  in  our  chosen  pro- 
fession,— one  who,  if  not  in  such  fulness  of  years  as  we  desired  to 
have  witnessed,  yet,  after  the  lapse  of  the  ordinary  limit  of  human 
life,  now  "sleeps  well"  in  the  silent  dormitory  of  the  dead. 

You  have  fitly  desired  to  do  such  honor  as  you  might  to  him, 
whom  you  have  rightly  regarded  as  one  of  those  greater  lumin- 
aries who  have  "ruled  the  days"  of  the  law,  and  whose  light  is 
not  extinguished  by  the  Providence  which  has  removed  him 
beyond  the  horizon  which  limits  our  present  vision. 

Upon  the  occasion  of  his  death,  you  shrouded  our  edifice  in  the 
emblems  of  that  mourning  which  was  not  of  mere  outward  show, 
but  which  pervaded  your  hearts.  And  you  have  now  placed  with- 
in the  hall  of  our  daily  studies  a  striking  portraiture  of  his  per- 
sonal presence,  that  his  merits  as  a  lawyer  may  remain  in  fresh 
remembrance,  not  only  with  us  who  now  occupy  its  precincts,  but 
with  the  succeeding  generations,  which  we  fondly  hope  will  fill 
these  seats,  when  we  shall  have  followed  him  whom  we  now  honor 
to  that  final  judgment  which  is  subject  neither  to  error  nor  ap- 
peal. 


Pierre  Soule.  making  speeches  in  Faneuil  Hall.  Father  Taylor,  the  sailor 
preacher  in  Boston,  drew  immense  crowds  to  hear  him  on  Sunday,  and 
the  law  students  went  often  to  his  church." 


184  HARVARD  LAW  SCHOOL. 


In  January,  1853,  tne  L&w  School  received  a  visit  from  William 
M.  Thackeray.  In  the  same  month,  January  27,  Reverend  James 
Walker  became  President  of  Harvard  College  on  the  resignation 
of  President  Sparks. 

In  May,  1853,  a  Convention  met  in  Boston  to  revise  the  Con- 
stitution of  Massachusetts,  to  which  Professor  Parker  and  Simon 
Greenleaf  were  elected  as  delegates  from  Cambridge.  Of  them, 
R.  H.  Dana,  Jr.,  who  was  also  a  delegate,  said  : 

Judge  Parker  disappointed  everybody.  He  showed  himself  an 
honest  man  and  a  good  dry  technical  lawyer;  but  he  discussed 
questions  of  statesmanship  and  public  policy  on  the  narrowest 
precedents  and  in  the  driest  manner.  .  .  Professor  Greenleaf 
seldom  attended  and  spoke  but  twice.  Those  speeches  were  short 
and  agreeable  in  their  manner  and  made  a  rather  favorable  impres- 
sion. Their  defect  was  that  he  did  not  at  all  throw  himself  into 
his  subject  or  into  the  hearts  or  minds  of  his  hearers.  ...  In 
short,  the  two  learned  professors  from  Cambridge  had  less  in- 
fluence than  the  two  mercantile  members  from  the  same  town. 

| 

While  undoubtedly  prejudiced  by  his  difference  from  Parker's 
political  views,  Dana  in  this  description  marked  out  the  chief 
failing  in  Professor  Parker's  methods  —  that  of  dryness  —  a  point 
which  will  be  spoken  of  in  a  later  chapter  on  the  characteristics 
of  the  Professors  at  this  period.  (i)  , 

The  Convention  will  always  be  memorable  in  the  history  of 
American  law  for  the  noble  speech  by  Rufus  Choate  in  splendid 
defence  of  an  appointive  Judiciary  —  a  speech  of  loftiest  dignity 
of  tone  and  containing  all  that  can  be  said  upon  the  subject.  His 
arguments  were  ably  supported  in  speeches  by  Professor  Parker. 

COURSES   AND   ATTENDANCE. 

In  1850-51,  the  number  of  students  in  the  first  term  was  94. 

Parker  lectured  on  Agency,  Corporations,  Equity  Juris- 
prudence and  Pleadings,  and  Wills  and  Administrations.  Parsons 
lectured  on  Evidence,  Insurance,  Contracts  and  Blackstone.  Gush- 
ing lectured  on  Real  Property,  Roman  Civil  Law  and  Arbitration. 

A   course   of   lectures   was   also   given   by   Mr.    (or   Count) 


(i)  For  most  enteresting  accounts  of  this  Convention,  see  Richard 
II.  Dana,  by  C.  F.  Adams,  Vol.  I,  and  George  S.  Boutvvell's  Reminiscences 
of  Sixty  Years,  Vol.  I. 


ANTI-SLAVERY  PERIOD.  185 

Gurowsky  on  the  History,  Principles  and  Influence  of  Civil  Law. 

In  1851-52,  the  number  of  students  in  the  first  term  was  109. 
Judge  Gushing  was  elected  University  Professor  on  July  16,  1851, 
at  a  salary  of  $1,000,  but  owing  to  ill  health  was  obliged  to  de- 
cline; and  on  January  31,  1852,  Edward  G.  Loring,  then  Judge  of 
Probate  for  Suffolk  County  and  a  United  States  Commissioner, 
was  appointed  as  Lecturer  in  Cushing's  place. (i) 

Parker  lectured  on  Bailments,  Equity,  Jurisprudence  and  Do- 
mestic Relations,  Mortgages,  Constitutional  Law,  Evidence  and 
Pleading.  Parsons  lectured  on  Blackstone,  Kent,  Bills  and  Notes, 
Shipping  and  Admiralty,  and  Partnership.  Loring  lectured  on 
Wills  and  Administration,  Devises,  and  Sales. 

The  Visiting  Committee  reported  to  the  Board  of  Overseers 
January  22,  1852: 

In  no  country  more  than  the  United  States,  is  the  science  of 
Law  the  subject  of  public  patronage  and  personal  attention;  and 
nowhere,  it  is  believed,  are  its  studies  superintended  by  more  pro- 
found ability,  or  pursued  by  more  devoted  attention,  than  at 
Cambridge. 

In  this  School,  men  are  taught,  not  merely  the  manner  of 
practising  the  law  as  a  business  of  active  life,  but  the  knowledge 
of  it  as  a  science,  and  the  mode  of  making  its  strict  and  command- 
ing power  the  guardian  spirit  of  our  Republican  institutions.  The 
Committee  are  happy  to  believe  that  the  School  justly  receives  a 
high  degree  of  popular  favor. 

In  the  year  1852-53  there  were  135  students  in  attendance  dur- 
ing the  first  term — a  considerable  increase.  Parker  substituted 
courses  on  Agency  and  Corporations  for  Bailments  and  Do- 
mestic Relations.  Parsons  substituted  Insurance,  for  Shipping 
and  Admiralty.  Judge  Loring  lectured  on  Devises,  Sales,  Arbi- 
tration and  Titles  by  Deed. 

The  Moot  Courts  continued  to  be  of  great  importance  in  the 
course  of  instruction,  and  President  Sparks  said  of  them  in 
1849-50 : 

The  arrangement  for  holding  two  Moot  Courts  each  week  has 
been  continued,  a  portion  of  this  part  of  the  duty  having  been 

(i)  Edward  Greeley  Loring  was  born  in  Boston.  Jan.  28,  1802,  son  of 
Edward  Loring.  He  graduated  from  Harvard  in  1821,  and  studied  law  in 
the  office  of  his  first  cousin,  the  famous  Charles  G.  Loring  (Harvard 
1812).  He  was  admitted  to  the  Suffolk  Bar  in  1824,  appointed  Judge  of 
Probate  for  Suffolk  County,  Dec.  17,  1847;  and  in  1841  a  United  States 
Commissioner. 


186  HARVARD  LAW  SCHOOL. 

assigned  to  the  Lecturer,  and  performed  by  him.  There  is  no 
doubt  of  the  great  value  of  this  part  of  the  exercises,  not  only  to 
those  who  are  assigned  as  counsel  and  conduct  the  arguments,  but 
to  those  also  who  attend  and  take  notes.  The  interest  mani- 
fested in  these  Courts  during  the  year  has  been  very  satisfactory, 
and  the  arguments  in  many  of  the  cases  heard  in  them  are  such 
as  would  do  credit  to  any  bar  in  the  LTnited  States.  The  annual 
Moot  Court  jury  case  was  one  of  more  than  ordinary  interest. (i) 

Many  of  the  graduates  of  those  days  now  write  that  they 
regard  their  Moot  Court  work  as  one  of  the  greatest  advantages 
gained  at  the  School. 

The  opinions  delivered  by  the  Professors  were  also  written  with 
remarkable  ability.  "It  was  not  an  uncommon  occurrence  to  see 
lawyers  from  Boston  in  the  room  listening  and  taking  notes  of  the 
arguments",  writes  Alexander  Wilson  (L.  S.  1851-53).  No  pains 
were  spared  the  opinions  authoritative  statements  of  law,  framed 
with  great  precision  and  after  considerable  study,  although  "fre- 
quently", writes  one  of  the  Moot  Court  counsel,  "I  fear  drawn  up 
before  hearing  the  arguments." 

As  in  Story's  time,  the  cases  given  out  for  argument  were 
frequently  actual  cases  pending  or  recently  argued  in  court.  Thus 
it  is  interesting  to  find  that  Professor  Parker  presided  over  a 
case,  May  20,  1851,  involving  the  conflict  between  State  and 
Federal  judicial  authorities — a  subject  on  which  the  great  judicial 
battle  had  arisen  in  1842  between  Parker  as  Chief  Justice  of 
New  Hampshire  and  Story  sitting  in  the  United  States  Circuit 
Court.  This  Moot  Court  Case,  U.  S.  v.  Humphrey  Jackson,  as 
appears  from  the  Moot  Court  book  of  C.  R.  Codman  (L.  S. 
1851-52)  was  an  indictment  of  a  State  Marshal  for  a  rescue 
from  the  custody  of  the  United  States  Marshal  of  a  prisoner  in- 
dicted for  larceny  in  the  L'nited  States  Circuit  Court.  The  case 
was  undoubtedly  given  out  because  of  the  recent  indictment  in 
Boston  of  the  persons  engaged  in  the  attempted  rescue  of  the 
fugitive  slave,  Shadrach. 

It  was  argued  by  Sidney  D.  Miller  (L.  S.  1850-51)  for  the 
prisoner  and  by  John  Ordronaux  (L.  S.  1851-52)  and  George  W. 
Field  (L.  S.  1850-51)  for  the  United  States. 


(i)     In  his  26th  Annual  Report,  Sparks  said: 

"The  annual  Moot  Court  jury  case  exerted  .a  lively  interest,  and 
furnished  evidence  of  the  value  of  an  occasional  exercise  of  that  char- 
acter, with  assurance  that  the  counsel  engaged  will  do  honor  to  the  pro- 
fession they  have  chosen." 


CHAPTER  XXXIII. 
THE  ANTI-SLAVERY  PERIOD  n. 

At  the  opening  of  the  fall  term  of  1853-54  occurred  the  death 
of  Simon  Greenleaf  on  October  6.  Services  commemorative  of  his 
life  and  labors  for  the  School  were  held  in  the  First  Church  in 
Cambridge  on  October  20,  at  which  Professor  Parsons  delivered 
a  most  appreciative,  tender,  and  personal  address. 

As  the  number  of  students  had  now  grown  to  148  (156  in  De- 
cember, "notwithstanding  the  increased  expenses  of  living,  the 
pressure  of  the  times,  and  other  adverse  influences/' — an  increase 
of  75  per  cent,  over  the  number  at  the  spring  term  of  1849 — Pro- 
fessors Parker  and  Parsons  were  convinced  of  the  necessity  for 
the  immediate  appointment  of  a  third  Professor ;  and  in  an  urgent 
letter  to  the  Corporation,  Dec.  23,  1853,  they  described  the  pres- 
sure upon  them,  in  lecture  work,  in  the  duties  of  supervision  and 
government,  and  in  their  "personal  intercourse  with  the  students 
and  direct  instruction  to  individuals".  They  suggested  that  such 
new  Professorship,  with  a  salary  of  $2,500,  and  the  same  duties 
as  those  imposed  on  the  other  Professors,  be  offered  to  the  then 
Lecturer,  Edward  G.  Loring,  who  had  been  appointed  Jan.  31, 
1852,  and  "whose  services  so  far  as  we  know  are  very  useful 
and  entirely  satisfactory". 

Accordingly,  the  Corporation  voted,  Dec.  23,  1853,  to  establish 
the  office  of  University  Professor  of  Law,  and  chose  Edward  G. 
Loring  to  fill  the  place. (i) 


(i)  The  Corporation  at  this  time  consisted  of  President  James  Walker, 
Chief  Justice  Lemuel  Shaw,  Charles  G.  Loring,  Rev.  George  Hayward, 
John  Amory  Lowell,  and  the  Treasurer  William  T.  Andrews.  The  vote 
was  as  follows : 

"Whereas  the  great  increase  in  the  number  of  students  attending  the 
Law  School  has  rendered  it  necessary  to  provide  larger  and  more  ample 
means  of  superintendence  and  instruction,  and  at  the  same  time  has  in- 
creased the  means  of  affording  such  increased  superintendence  and  in- 
struction. 

Voted  that  there  be  and  there  is  hereby  established  the  office  of  Univer- 
sity Professor  of  Law,  the  Professor  holding  this  office  to  perform  all 
the  duties  of  superintendence  and  instruction  in  the  Law  School  in  con- 
nection with  the  Royall  and  Dane  Professors,  the  distribution  and  ar- 
rangement of  these  duties  to  be  made  by  the  three  Professors.  This  Profes- 
sorship is  to  be  subject  to  all  the  statutes  and  by-laws  which  have  been  or 


188  HARVARD  LAW  SCHOOL. 

This  vote  precipitated  a  bitter  and  heated  conflict  between  the 
Corporation  and  the  Board  of  Overseers,  which  was  so  closely 
connected  with  the  excitement  prevailing  at  this  time  over  the 
slavery  question  and  the  Fugitive  Slave  Act,  that  it  deserves  a 
detailed  description. 

The  question  of  concurrence  in  the  vote  of  the  Corporation 
was  presented  to  the  Board  of  Overseers,  February  9,  1854,  and 
on  motion  of  Robert  C.  Winthrop,  referred  to  a  Committee  con- 
sisting of  Francis  Bassett,  Richard  Fletcher  and  Samuel  Hoar. 

At  this  time,  the  new  statute  of  Massachusetts,  under  which  ten 
Overseers  were  elected  by  the  Legislature,  had  gone  into  effect. 
The  Legislature  was  controlled  by  the  Whig  party ;  Emory  Wash- 
burn  was  Governor ;  and  the  Overseers  just  elected,  Jan.  27,  1854, 
were  John  H.  Clifford,  Attorney  General  of  Massachusetts,  Rich- 
ard Fletcher,  George  Morey,  Abbott  Lawrence,  Marcus  Morton, 
Reuben  A.  Chapman,  Joel  Hayden,  Rev.  George  W.  Blagden, 
Rev.  Nathaniel  Cogswell,  Rev.  Baron  Stow,  and  Rev.  Thomas 
Worcester. 

On  March  9,  1854,  the  Committee  presented  an  adverse  report, 
stating  that  the  old  system  had  been  tried  and  found  to  work  well 
and  prosperously  and  should  not  be  lightly  broken  up  or  dis- 
turbed; and  that  there  was  serious  objection  to  a  permanent  Pro- 
fessorship without  a  certain  and  permanent  fund  for  its  sup- 
port. 

There  are  advantages  in  being  able  to  apply  the  surplus  funds 
beyond  the  wants  of  the  two  permanent  Professors  from  time  to 
time  in  such  manner  as  the  best  interests  of  the  School  may  re- 
quire. 

Some  variety  in  the  mode  of  instruction  and  some  variety  in 
the  talents  and  attainments  of  persons  employed,  may  be  of  value 
and  service  to  the  School.  .  .  . 

Eminent  men  may  at  times  be  obtained  to  lecture  on  special 
branches  of  the  law  to  which  they  have  paid  particular  attention, 
to  the  great  advantage  and  credit  of  the  School. 

By  bringing  occasionally  new  men  who  are  fresh  and  ardent 

may  be  hereafter  made  for  the  regulations  and  government  of  the  Law 
School  in  this  University. 

Voted  that  until  further  order,  the  Professor  to  be  elected  on  this  es- 
tablishment shall  not  be  required  to  reside  at  Cambridge. 

Voted  that  the  salary  to  be  paid  to  the  University  Professor  of  Law 
be  $2,500  a  year. 

Voted  that  this  Board  do  now  proceed  to  elect  a  University  Professor  of 
Law.  Whereupon  ballots  being  given  it  appeared  that  Edward  Greely 
Loring  Esq.  of  Boston  was  unanimously  elected." 


ANTI-SLAVERY  PERIOD.  189 

in  their  work,  both  teachers  and  pupils  may  be  quickened  and 
animated  in  giving  and  receiving  instruction. 

The  real  gist  of  their  report,  however,  was  contained  in  that 
portion  which  referred  to  the  particular  person  chosen.  The 
objections  which  they  made  to  Judge  Loring  were  that  it  was 
improper  for  a  Professor  to  continue  to  hold  the  office  of  Judge 
of  Probate,  the  duties  of  which  were  manifold  and  of  peculiar 
importance  to  the  community,  and  that  such  a  man  could  not  per- 
form faithfully  both  duties,  and  further  that  the  exemption  from 
residence  in  Cambridge  would  be  particularly  disastrous  to  the 
interests  of  the  School,  in  view  of  the  fact  that  supervision  and 
personal  association  with  the  students  was  especially  desired. 
Judge  Story's  case  was  held  to  have  been  peculiar : 

His  great  fame,  great  talents  and  great  attainments  enabled 
him  to  do  more  for  the  School  with  all  his  judicial  duties  upon 
him  than  could  be  done  by  any  other  man  who  was  free  from 
such  duties. 

But  Judge  Story  was  an  extraordinary  man  and  his  case  forms 
an  exception  and  not  a  rule.  The  duties  of  a  Professor  who  is  to 
share  the  responsibility  of  the  charge  and  oversight  of  the  School 
should  have  the  first  claim  on  his  time  and  abilities. 

The  high  rank  and  great  importance  of  this  institution  require 
that  it  should  be  always  under  the  care  and  control  of  able  men 
who  will  give  to  it  their  best  effort  and  look  to  it  as  the  field  of 
their  duty,  their  usefulness  and  fame. 

Such  were  the  reasons  alleged  by  the  Committee  for  non-con- 
currence. The  real  fact,  however,  was,  that  Judge  Loring  was 
personally  and  politically  unpopular  with  the  strong  anti-slavery 
men  on  the  Board,  owing  to  his  holding  the  office  of  United  States 
Commissioner,  before  whom  the  cases  under  the  Fugitive  Slave 
Law  might  be  brought. 

On  March  9,  1854,  the  Board  of  Overseers  discussed  the  report 
and  voted  to  lay  it  upon  the  table.  As  it  was  evident  that  the 
Overseers  would  act  adversely,  the  Corporation  decided  to  with- 
draw its  votes,  and  accordingly  on  March  18,  so  voted. (i) 


(i)     See  Corporation  Records: 

"This  Board  having  thought  it  expedient  again  to  take  into  consideration 
the  subject  of  the  establishment  of  a  University  Professor  of  Law  accord- 
ing to  the  vote  passed  at  a  meeting  of  this  Board  on  23  December  last. 

Voted  that  the  vote  establishing  the  University  Professorship  above 
stated,  together  with  the  vote  directing  the  same  to  be  laid  before  the  Board 
of  Overseers,  be  and  the  same  are  hereby  rescinded  and  withdrawn. 


IQO  HARVARD  LAW  SCHOOL. 

On  April  n,  1854,  both  Professor  Parker  and  Professor  Parsons 
wrote  to  the  Corporation,  urging  that  Judge  Loring,  in  spite  of 
his  rejection  by  the  Overseers  for  the  new  Professorship,  should 
be  reappointed  as  a  Lecturer,  at  a  salary  of  $1,500  a  year. (i) 
Meanwhile,  Loring  was  still  serving  in  that  capacity,  to  the  great 
satisfaction  of  the  Professors  and  with  great  popularity  among 
the  students — little  anticipating  the  storm  that  was  to  break  over 
him,  to  wreck  his  judicial  career  in  Massachusetts,  and  to  destroy 
all  his  hopes  of  continuance  at  the  Law  School.  This  storm  arose 
out  of  a  case  in  Boston  which  threw  not  only  Boston  and  Harvard 
College,  but  all  Massachusetts,  into  a  state  of  feverish  excite- 
ment— and  which  has  left  its  impress  on  the  Law  School's  history, 
by  causing  the  removal  of  a  popular  Instructor  and  the  accession 
of  one  of  its  most  valued  Professors. 

On  May  24.  1854,  a  negro,  named  Anthony  Burns,  was  arrested 
by  a  deputy  United  States  Marshal  in  Boston,  on  a  charge  of 
breaking  into  a  jewelry  store.  Being  carried  at  once  into  the 
United  States  court  room,  he  was  there  claimed  as  a  fugitive 
slave  by  one  Charles  T.  Suttle,  of  Virginia.  The  warrant  for  the 
arrest  of  the  fugitive  had  been  issued  by  Edward  G.  Loring  as 
United  States  Commissioner.  Richard  H.  Dana,  Jr.,  May  25, 
being  casually  told  of  the  occurrence,  went  to  the  court  room,  and 
finding  the  negro  dazed  and  without  counsel  asked  for  delay.  This 

Voted  that  the  President  be  requested  to  lay  this  vote  before  the  Board 
of  Overseers  at  their  next  meeting." 

March  12,  1854,  L.  S.  Gushing  wrote  to  Professor  Parsons  (See  Harv. 
Coll.  Papers,  2nd  Series,  Vol.  XX.)  : 

"The  turn  which  the  establishment  of  the  University  Professorship  of 
Law  has  taken  with  the  Overseers  is  so  extraordinary  that  I  cannot  for- 
oear  making  a  suggestion  respecting  it  which  occurs  to  me  and  which  pos- 
sibly may  be  of  some  use  to  you.  In  1816,  Chief  Justice  Isaac  Parker  was 
appointed  Royall  Professor  of  Law,  the  duties  of  which  were  then  dis- 
charged by  the  delivery  of  a  short  course  of  lectures  annually  to  the  un- 
dergraduates, and  had  nothing  to  do  with  the  instruction  of  Law  students. 
This  professorship  had  been  established  probably  many  years  before.  In 
the  next  year,  1817,  the  law  school  was  created  .and  established  on  the  foot- 
ing on  which  it  has  ever  since  stood.  The  statutes  establishing  the  school 
provided  among  other  things  for  the  appointment  of  a  professor  to  be 
styled  the  University  Professor  and  prescribed  his  duties.  Mr.  Stearns  re- 
ceived the  appointment  and  held  the  office  until  the  year  1829,  when  he  and 
Judge  Parker  resigned.  .  .  .  The  suggestion  I  would  make  is  whether 
the  old  University  professorship  has  ever  been  abolished  or  abrogated.  If 
not,  the  opposition  in  the  overseers  would  be  reduced  in  form  to  what  it  is, 
in  fact,  an  objection  to  Mr.  Loring." 

(i)     See  letters  of  Parker  and  Parsons  to  the  Corporation,  April   n, 

1854- 

Letter  of  Parsons  to  C.  G.  Loring,  April  27,  1854. 

Letter  of  Parsons  to  President  Walker,  August  8,  1854,  Harv.  Coll.  Pa- 
pers, 2nd  Series,  Vol.  XX. 


ANTI-SLAVERY  PERIOD.  191 

was  opposed  by  Edward  G.  Parker,  counsel  for  the  claimant. 
Dana's  own  account  gives  a  vivid  picture  of  the  very  considerate 
action  of  Loring  in  the  matter,  and  shows  how  harshly  unjust 
were  the  attacks  upon  him  that  followed. 

The  commissioner,  Edward  G.  Loring,  at  my  private  sugges- 
tion, called  the  prisoner  to  him  and  told  him  what  his  rights  were, 
and  asked  him  if  he  wished  for  time  to  consider  what  he  would 
do.  The  man  made  no  reply  and  looked  round  bewildered,  like 
a  child.  Judge  Loring  again  put  the  question  to  him  in  a  kind 
manner,  and  asked  him  if  he  would  like  to  have  a  day  or  two, 
and  then  see  him  there  again.  To  this  he  replied  faintly,  "I 
would".  The  judge  then  ordered  a  delay  until  Saturday. 

The  conduct  of  Judge  Loring  has  been  considerate  and  humane. 
If  a  man  is  willing  to  execute  the  law,  and  be  an  instrument  of 
sending  back  a  man  into  slavery  under  such  a  law,  he  could  not 
act  better  in  his  office  than  Judge  Loring.  He  professes  to  detest 
the  law,  but  he  will  follow  the  rigid  construction  the  courts  have 
put  upon  it  as  matter  of  duty.  .  .  . 

May  26.  Friday.  As  the  negro  was  uncertain  whether  to 
make  a  defence  or  to  have  counsel  at  all,  I  felt  that  it  was  im- 
proper for  me  to  intrude  myself  upon  him.  If  any  were  to  advise, 
it  should  be  others  than  a  lawyer  who  had  once  offered  to  act.  At 
my  suggestion,  Rev.  M.  Grimes  and  Deacon  Pitts  (the  clergyman 
and  deacon  of  the  congregation  of  colored  people)  and  Wendell 
Phillips  asked  leave  of  the  marshal  to  see  him.  This  was  refused. 
They  asked  him  if  it  would  be  of  any  use  to  obtain  an  order  from 
Judge  Loring  to  admit  them.  He  said  it  would  not.  They  then 
returned  to  me.  I  told  them  at  least  to  compel  Mr.  Freeman  to 
refuse  it,  and  wrote  a  note  to  Judge  Loring  (who  was  at  Cam- 
bridge, lecturing  at  the  Law  School),  stating  to  him  that  I 
scarcely  felt  at  liberty  to  act  as  counsel  for  the  man  and  was  un- 
willing to  obtrude  myself  upon  him,  and  that  the  proper  persons 
to  see  him  and  ascertain  his  wishes  had  been  refused  admission. 
To  this  Judge  Loring  responded  in  a  note  to  Freeman,  telling  him 
that  it  was  the  man's  right  to  see  a  few  friends,  and  that  if  any 
reasonable  number,  two  or  three,  wished  to  see  him.  their  names 
must  be  taken  to  him,  and  their  purpose  stated  to  him,  and  if  he 
desired  to  see  them,  they  must  be  admitted. 

Rufus  Choate  having  refused  the  request  of  several  prom- 
inent Free  Soilers  to  act  as  counsel  for  Burns,  Richard  H.  Dana, 
Jr.  and  Charles  M.  Ellis  were  then  engaged. 

Meanwhile  the  sentiment  in  Boston  and  over  the  State  had 
rapidly  risen  in  favor  of  the  fugitive.  Since  the  Sims  case,  three 
years  before,  a  great  change  had  come  over  the  political  feeling 
of  Massachusetts.  Webster  was  dead  and  his  compromise  meas- 


192  HARVARD  LAW  SCHOOL. 

ures  of  1850  had  proved  utter  failures.  The  infamous  Kansas- 
Nebraska  bill  had  passed  the  Senate  on  March  4,  i854,(i)  and 
on  May  25,  1854,  the  day  after  the  arrest  of  Burns  in  Boston — 
President  Pierce  signed  this  bill — "the  most  momentous  measure 
ever  passed  by  Congress.  It  sealed  the  doom  of  the  Whig  party ; 
it  caused  the  formation  of  the  Republican  party  on  the  principle 
of  no  extension  of  slavery.  It  raised  Lincoln  and  gave  a  bent 
to  his  great  political  ambition.  It  made  the  fugitive  slave  law  a 
dead  letter  at  the  North ;  it  caused  the  Germans  to  become  Re- 
publicans ;  it  lost  the  Democrats  their  hold  on  New  England ;  it 
made  the  Northwest  Republican  and  led  to  the  downfall  of  the 
Democratic  party." (2)  "Pierce  and  Douglas",  said  Horace 
Greeley,  "have  made  more  abolitionists  in  three  months  than  Gar- 
rison and  Phillips  could  have  made  in  half  a  century." 

The  situation  in  Boston  on  May  26,  was  thus  described  by 
Dana : 

Tonight  a  great  meeting  is  to  be  held  at  Faneuil  Hall.  There 
is  a  strong  feeling  in  favor  of  a  rescue,  and  some  of  the  abolition- 
ists talk  quite  freely  about  it.  But  the  most  remarkable  exhibition 
is  from  the  Whigs,  the  Hunker  Whigs,  the  Compromise  men  of 
1850.  Men  who  would  not  speak  to  me  in  1850  and  1851,  and 
who  enrolled  themselves  as  special  policemen  in  the  Sims  affair, 
stop  me  in  the  street  and  talk  treason.  This  is  all  owing  to  the 
Nebraska  bill.  I  cannot  respect  their  feeling  at  all,  except  as  a 
return  to  sanity.  The  Webster  delusion  is  passing  off. 

Amos  A.  Lawrence  called  to  offer  any  amount  of  retainer  to 
enable  me  to  employ  some  eminent  Whig  counsel.  He  said  he 
was  authorized  to  do  this  by  a  number  of  active  1850  men,  who 
were  determined  it  should  be  known  that  it  was  not  the  Free 
Soilers  only  who  were  in  favor  of  the  liberation  of  the  slaves,  but 
the  conservative,  compromise  men. 

In  this  suggestion  I  called  on  Judge  Fletcher  and  Mr.  Choate. 
Judge  Fletcher  said  that  his  sympathies  were  with  us,  and  if  there 
should  be  a  rescue,  he  would  not  lift  a  finger  to  prevent  it,  but  that 
he  was  under  an  especial  engagement  with  the  Reporter  which  did 
not  leave  him  an  option  as  to  his  time. 

Choate  I  had  an  amusing  interview  with.  I  asked  him  to  make 
one  effort  in  favor  of  freedom,  and  told  him  that  the  1850  delu- 


(1)  "As  the  senators  went  home  on  this  sombre  March  morning,  they 
heard  the  boom  of  the  cannon  from  the  Navy  Yard  proclaiming  the  tri- 
umph of  what  Douglas  called  "popular  sovereignty."  Chase  and  Sumner, 
who  were  devoted  friends,  walked  down  the  steps  of  the  Capitol  together, 
and  as  they  heard  the  thunders  of  victory,  Chase  exclaimed  "they  celebrate 
a  present  victory,  but  the  echoes  they  awake  shall  never  rest  until  slavery 
itself  shall  die."  Rhodes'  History  of  the  United  States,  Vol.  I. 

(2)  Rhodes'  History  of  the  United  States,  Vol.  I. 


ANTI-SLAVERY  PERIOD.  193 

sion  was  dispelled,  and  all  men  were  coming  round,  the  Board  of 
Brokers  and  Board  of  Aldermen  were  talking  treason,  and  that 
he  must  come  and  act.  He  said  he  should  be  glad  to  make  an 
effort  on  our  side,  but  that  he  had  given  written  opinions  against 
us  in  the  Sims  case  on  every  point,  and  that  he  could  not  go 
against  them. 

"You  corrupted  your  mind  in  1850." 

"Yes.    Filed  my  mind." 

"I  wish  you  would  file  it  in  court,  for  our  benefit." 

Mr.  Charles  G.  Loring  was  out  of  town,  and  there  was  no  one 
else  that  I  thought  would  answer  Mr.  Lawrence's  description. 

On  May  27,  a  mob,  led  by  Rev.  Thomas  Wentworth  Higginson, 
then  of  Worcester,  broke  into  the  court  house  and  attempted  to 
rescue  Burns,  but  were  repulsed. (i)  Immediately  after  this  a 
company  of  United  States  marines  and  a  company  of  artillery,  to- 
gether with  several  State  militia  companies,  were  summoned  to 
guard  the  court  house.  The  hearing  on  the  case  was  held  on  May 
27,  29,  30  and  31. 

There  were  frequent  instances  of  men  prohibited  from  going 
into  the  courts  of  the  State,  and  no  one  was  permitted  to  enter 
the  court-house,  judges,  jurors,  witnesses  or  litigants,  without 
satisfying  the  hirelings  of  the  United  States  marshal  that  they 
had  a  right  to  be  there.  All  this  time  there  were,  or  attempted  to 
be,  in  session  in  the  building,  the  Supreme  and  Common  Pleas 
Courts  of  Massachusetts,  and  the  Justices'  and  Police  Courts  of 
Boston.  In  most  cases  these  courts  adjourned  for  want  of  busi- 
ness. Thus  the  judiciary  of  Massachusetts  has  been  a  second  time 
put  under  the  feet  of  the  lowest  tribunal  of  the  federal  judiciary 
in  a  proceeding  under  the  Fugitive  Slave  Law.  Judge  Shaw,  who 
held  the  Supreme  Judicial  Court,  is  a  man  of  no  courage  or  pride, 
and  Judge  Bishop,  who  held  the  Court  of  Common  Pleas  is  a  mere 
party  tool,  and  a  bag  of  wind  at  that.  It  was  the  clear  duty  of 
the  court  to  summon  before  it  the  United  States  marshal  to  show 
cause  why  he  should  not  be  committed  for  contempt,  and  to  com- 
mit him,  if  it  required  all  the  bayonets  in  Massachusetts  to  do  it, 
unless  he  allowed  free  passage  to  all  persons  who  desired  to  come 
into  either  of  the  courts  of  the  State. (2) 


(1)  T.   W.   Higginson,  Theodore   Parker,  Martin   Stowell,  John   Mor- 
rison, Samuel  T.  Proudman  and  John  C.  Cluer  were  indicted  in  the  United 
States  Circuit  Court,  in  November,  1854,  for  being  engaged  in  this  attempt. 
The  trial  occurred  April  3,  1855.     John  P.  Hale  of  New  Hampshire  and 
Charles  M.  Ellis  were  counsel  for  Parker.     John  A.  Andrew,  Henry  F. 
Durant  and  William  L.  Burt  were  counsel  for  the  other  defendants.    B.  F. 
Hallett,  U.  S.  District  Attorney,  appeared  for  the  Government.     The  trial 
resulted  in  an  acquittal. 

(2)  Richard  H.  Dana,  by  C.  F.  Adams. 
13 


194  HARVARD  LAW  SCHOOL. 

Of  peculiar  interest  to  the  Law  School  was  the  fact  that 
"besides  the  general  guard  which  the  United  States  Marshal  had, 
to  keep  his  prisoner,  there  was  a  special  guard  of  Southern  men, 
some  of  them  law  students  from  Cambridge,  who  sat  around  Col. 
Suttle  and  went  in  and  out  with  him." 

On  June  2,  the  day  when  Judge  Loring  was  to  give  his  de- 
cision, Boston  and  the  entire  State  were  alive  with  excitement. 
The  Mayor  of  Boston  had  ordered  out  the  entire  military  force  of 
the  city,  1,500-1,800  men,  who,  with  three  companies  of  United 
States  regulars,  filled  the  streets  and  squares  from  the  court  house 
to  the  wharf,  where  lay  the  United  States  revenue  cutter,  ready 
to  take  Burns  back  to  Virginia.  Judge  Loring's  decision  was  in 
favor  of  the  claimant.  The  prisoner  was  at  once  taken  under 
guard,  down  Court  and  State  Streets,  between  shops  hung  with 
black ;  and  preceded  and  followed  by  troops  he  was  placed  safely 
on  board  the  cutter.  So  ended  this  famous  case. 

Its  after-effects,  however,  were  long  to  be  felt.  Dana  thus  de- 
scribed the  change  in  public  sentiment : 

Men  who  were  hostile  or  unpleasant  in  1851  are  now  cordial 
and  complimentary,  and  the  prevailing  talk  among  merchants  and 
lawyers  is  that  of  hostility  to  slavery  and  the  slave-power.  It 
is  all  fair  weather  sailing  now.  This  case  is  precisely  the  same  as 
that  of  Sims.  But  then  we  were  all  traitors  and  malignants,  now 
we  are  heroes  and  patriots.  The  truth  is,  Daniel  Webster  was 
strong  enough  to  subjugate,  for  a  time,  the  moral  sentiment  of 
New  England.  He  was  defeated,  killed,  and  now  is  detected.  He 
deceived  half  the  North,  but  they  are  undeceived.  He  does  not 
stand  as  he  did  six  months  ago.  .  .  . 

James  Russell  Lowell  wrote,  May  29,  1854: 

Is  not  all  this  about  that  poor  fugitive  Burns  nasty  ?  I  can  find 
no  other  word.  I  do  not  like  to  think  that  the  natural  instincts  of 
Massachusetts  are  all  snobbish,  but  it  would  take  a  good  deal  to 
convince  me  that  they  are  not.  .  .  While  the  Virginia  newspapers 
are  descanting  on  the  meritoriousness  of  shooting  Yankee  school- 
masters, they  are  inviting  a  Virginia  slave  hunter  to  dinner.  By 
St.  Paul!  if  things  go  on  and  the  old  Puritan  Spirit  once  gets  up 
again  (if  it  be  not  dead)  we  may  send  them  schoolmasters  such  as 
Oliver  sent  to  Ireland. 

Longfellow  wrote  in  his  diary : 

May  26,   1854.     Yesterday  a  fugitive  slave  was  arrested  in 


ANTI-SLAVERY  PERIOD.  195 

Boston.  Today  there  is  an  eclipse  of  the  sun.  "Hung  be  the 
heavens  in  black !" 

May  27.  Last  night  there  was  a  meeting  in  Faneuil  Hall  and 
afterwards  an  attempt  at  rescue  which  I  am  sorry  to  say  failed. 
I  am  sick  and  sorrowful  with  this  infamous  business.  Ah,  Web- 
ster, Webster,  you  have  much  to  answer  for ! 

May  29.    The  air  is  pestilential  with  this  fugitive  slave  case. 

May  30.  The  slave  case  drags  along.  There  is  great  and  wide- 
spread excitement  and  a  healthy  one.  The  general  feeling  is  "We 
will  submit  to  this  no  longer,  come  what  may !" 

June  2.  The  fugitive  slave  is  surrendered  to  his  master  and 
being  marched  through  State  Street  with  soldiery,  put  on  board 
the  U.  S.  Revenue  cutter.  Dirty  work  for  a  country  that  is  so 
loud  about  freedom  as  ours ! 

The  Springfield  Republican  said  editorially,  June  3 : 

Law  and  order  and  slavery  and  bayonets  and  slave  catchers 
triumph — and  such  scenes  as  God  forbid  shall  ever  be  witnessed 
in  Boston  again. 

Josiah  Quincy  wrote  in  his  diary: 

June  2.  Left  Boston  as  early  as  possible  to  avoid  the  painful 
scene  of  a  human  creature  restored  to  bondage  by  the  arm  of  the 
law.  The  public  sentiment  so  averse  to  the  measure,  that  a  body 
of  troops  and  cannon  loaded  were  deemed  requisite  to  carry  the 
law  into  execution — such  was  the  opposition  manifested.  Events 
indicative  of  discontents,  which  are  at  no  distant  period,  if  not 
removed,  to  be  the  source  of  irretrievable  discords  and  dangers  to 
the  continuance  of  our  Union. 

Such  being  the  feelings  freely  expressed  on  all  sides,  the  public 
demanded  a  victim,  and  found  it  in  the  person  of  the  mild  and  up- 
right Judge — the  United  States  Commissioner  who  under  his  oath 
had  no  choice  but  to  carry  out  the  law  as  laid  down  by  the  courts 
— Edward  G.  Loring. 

The  first  attack  upon  him  in  his  connection  with  Harvard 
College  was  by  W.  S.  Robinson,  "Warrington",  in  the  Boston 
Daily  Commonwealth,  June  3.  1854: 

The  deed  of  shame  has  been  done.  Boston  is  again  disgraced. 
Massachusetts  is  prostrate  today  at  the  feet  of  the  slaveholders ; 
yes,  at  the  feet  of  one  slaveholder. 

This  decision,  while  it  illustrates  that  complete  negation  of  all 
law  which  is  the  characteristic  and  animating  principle  of  the 
Fugitive  Slave  Bill,  also  illustrates,  in  an  unmistakable  manner, 


196  HARVARD  LAW  SCHOOL. 

the  character  of  Edward  G.  Loring.  He  needs  not  to  be  called 
names,  if  names  bad  enough  could  be  found  for  him.  He  ought 
to  be  forever  held  infamous  by  the  people  of  Boston  and  of  Mas- 
sachusetts. .  .  .  Let  him  be  a  marked  man  forever.  Let 
Harvard  College  be  required  to  repudiate  his  teachings,  and  the 
Legislature  compelled  to  fill  his  judicial  station  with  another  and 
better  man.  Let  the  public  sentiment  which  he  has  outraged  fol- 
low him.  Let  it  concentrate  itself  upon  him. 

This  vicious  onslaught  was  followed  up  by  similar  attacks  in 
other  newspapers ;  and  the  anti-slavery  men  of  the  community  in 
their  animosity  towards  Loring,  completely  lost  their  heads. 
The  question  of  his  appointment  as  Lecturer  in  the  Law 
School  was  at  this  time  pending  before  the  Corpora- 
tion, and  at  once  became  a  storm  centre  for  a  furious 
tempest  of  opposition  in  College  circles.  The  Corporation 
was,  however,  inclined  to  stand  firm.  On  July  28,  1854,  Charles  G. 
Loring  wrote  to  Walker  that  he  saw  no  reason  why  the  Corpora- 
tion should  "demur  to  do  its  duty  because  a  few  malignants  in 
the  Overseers  may  be  disposed  to  make  trouble",  and  that  as  it 
was  plain  that  a  fight  was  inevitable,  the  Corporation  ought  to  be 
ready  for  it — especially  in  view  of  the  fact  that  Loring  had  acted 
on  the  faith  of  his  understanding  with  the  Corporation  and  given 
up  much  law  business  to  take  up  his  Law  School  work.(i) 

The  Professors  of  the  Law  School  were  vigorous  in  urging 
Loring's  retention,  as  being  a  very  "useful  and  acceptable"  man. 
The  students  were  enthusiastically  in  his  favor,  for  he  was  ex- 
tremely popular  with  them. 

Accordingly  on  August  26,  1854,  the  Corporation  took  action: 

The  Chief  Justice  for  the  Committee  on  the  communication  of 
the  Law  Faculty  reported  "That  they  recommend  the  re-appoint- 
ment of  Mr.  Loring  to  the  Lectureship  in  the  Law  School." 

Whereupon  it  was 

Voted  that  Hon.  Edward  G.  Loring  be  re-appointed  Lecturer 
in  the  Law  School. 

Voted  that  the  President  be  requested  to  lay  this  appointment 
before  the  Board  of  Overseers  that  they  may  concur  therein  if 
they  see  fit. 

(i)  See  interesting  letters  of  Loring  to  Walker  of  July  28,  1854;  letter 
of  Walker  to  Loring,  Aug.  25,  1854;  letter  of  Parker  and  Parsons  to  Cor- 
poration, Sept.  1854;  Han>.  Coll.  Papers,  2nd  Series,  Vol.  XXI. 

See  also  letter  of  Loring  to  Walker,  Jan.  20,  1855.  Harv.  Coll.  Papers, 
2nd  Series,  Vol.  XXII,  calling  attention  to  the  fact  that  while  he  was  only 
engaged  to  perform  one-fifth  of  the  duties,  he  had  actually  performed  one- 
third.  See  Vote  of  Corporation,  Aug.  20,  granting  Loring  $750  for  extra 


Edward  Greely  Loring 


ANTI-SLAVERY   PERIOD.  197 

In  the  state  of  popular  feeling,  it  was  unlikely  that  Loring's 
appointment  would  be  confirmed  by  the  Overseers.  There  were 
some  few  anti-slavery  men,  however,  who  remained  sane ;  and 
their  views  were  well  expressed  in  an  anonymous  pamphlet  ad- 
dressed to  the  Overseers — an  address  which  contains  such  con- 
vincing arguments  of  the  falseness  of  the  position  taken  by  Lor- 
ing's opponents,  that  it  is  here  reproduced  in  full : 

Intimations  have  been  given  of  the  existence,  in  certain  quar- 
ters, of  a  purpose  to  oppose  the  confirmation  of  Judge  Loring 
by  the  Board  of  Overseers,  as  Lecturer  at  the  Law  School,  be- 
cause he  has  acted  as  a  Commissioner  in  the  execution  of  what 
is  called  the  Fugitive  Slave  Law.  Judge  Loring  has  filled  the 
place  of  Lecturer  very  usefully  for  several  years,  and  is  now  again 
nominated  to  it  by  the  Corporation.  If  such  a  purpose  as  that 
above  referred  to  is  entertained,  a  grave  question  is  likely  to 
arise  in  the  management  of  the  College.  It  is  no  less  than  this : 
Will  the  Overseers  reject  a  nominee  of  the  Corporation,  whose 
services  that  Corporation  has  ascertained  to  be  valuable  to  the 
Law  School,  because  he  has  acted  as  Commissioner  in  the  rendi- 
tion of  a  fugitive  slave? 

No  one,  it  is  presumed,  would  wish  to  punish  Judge  Loring 
for  the  existence  of  the  Fugitive  Slave  Law,  or  for  the  existence 
of  that  clause  in  the  Constitution  of  the  United  States  which  the 
Judges  of  the  Supreme  Court  of  Massachusetts  have  unanimously 
declared  to  be  the  authority  for  the  enactment  of  the  Law.  Judge 
Loring  is  responsible  neither  for  the  Law,  nor  for  the  Constitu- 
tion, nor  for  the  authoritative  declaration  of  the  Supreme  Court 
of  this  State  that  the  Law  is  in  conformity  to  the  Constitution. 
All  that  anybody  can  undertake  to  hold  him  responsible  for,  is 
the  having  acted  as  a  magistrate  in  the  execution  of  this  Law  ; 
and  therefore,  it  is  respectfully  suggested,  what  the  Board  of 
Overseers  have  to  consider,  is,  whether  it  is  either  just  or  ex- 
pedient to  reject  him,  or  to  allow  it  to  be  said  that  he  has  been 
rejected  for  this  reason. 

There  are  those  who  have  taken  the  ground  that  the  moral 
feeling  of  Massachusetts  ought  to  be  vindicated  by  Judge  Lor- 
ing's rejection.  If  there  is  any  feeling  that  demands  to  be  vindi- 
cated in  this  way,  it  can  only  be  one  that  is  prepared  to  say,  that 
whoever,  as  a  magistrate,  shall  execute  the  laws  of  the  United 
States  for  the  rendition  of  fugitive  slaves,  shall  be,  ipso  facto,  in- 
capacitated to  be  a  professor  or  lecturer  at  the  Law  School  of 
Harvard  College.  Will  the  Board  of  Overseers  either  make  this 
declaration,  or  act  upon  it  without  making  it,  or  put  it  in  the 
power  of  other  persons  to  say  that  they  have  acted  upon  it  ? 

Do  the  Board  of  Overseers  feel  at  liberty  to  administer  the 
concerns  of  the  Law  School  entirely  with  reference  to  the  sup- 
posed, or  real,  sentiments  of  Massachusetts  ?  The  Law  School  is 


198  HARVARD  LAW  SCHOOL. 

an  institution,  which,  while  it  is  governed  by  citizens  of  Massa- 
chusetts, and  is  part  of  a  University  connected  indirectly  with  the 
State,  yet  sustains  relations — and  very  important  ones — to  the 
whole  country.  It  has  thus  far  drawn  a  great  many  students 
from  the  South ;  and  no  one  will  doubt  that  it  is  quite  important  to 
have  young  men  from  the  South  receive  their  legal  education  in 
New  England,  where  they  can  learn  something  of  our  laws  and 
our  institutions,  see  something  of  our  social  system,  and  become 
interested  in  what  concerns  our  welfare.  It  has  been  remarked 
by  those  who  have  had  occasion  and  opportunity  to  notice  the 
fact,  that  the  Law  School  of  Harvard  College,  since  its  revival  in 
1829,  has  been  a  very  powerful  instrument  in  removing  and  soft- 
ening sectional  prejudices.  The  great  number  of  gentlemen  who 
have  resorted  hither  from  distant  parts  of  the  Union,  have  gone 
home  and  entered  the  legal  profession,  and  have  risen  to  high  and 
important  stations,  with  sound  views  of  constitutional  law,  and 
with  enlarged  and  liberal  minds.  If  you  meet  with  a  Southern 
lawyer  or  politician,  who  is  a  secessionist,  or  a  nullifier,  or  a  hater 
of  New  England,  you  will  rarely  find  that  he  was  educated  at 
Dane  Law  College.  The  men  of  the  South  and  Southwest  who 
bear  an  LL.B.  after  their  names,  and  who  obtain  that  degree  at 
Cambridge,  are  seldom  found  saying  or  doing  anything  against 
us  or  our  interests.  They  have  got  too  much  of  the  staple  of 
their  minds  and  characters  from  that  noble  institution  to  allow  of 
their  nourishing  unworthy  prejudices  against  the  North.  There 
is  many  a  man  in  high  public  position  in  slave-holding  States  who 
was  educated  under  Judge  Story  and  his  colleagues  in  instruction, 
and  who  admires  and  respects  New  England,  and  hopes  always 
to  retain  kind  feelings  towards  her,  to  transmit  such  feelings  to 
those  who  are  to  come  after  him,  and  to  have  them  trained  under 
the  same  or  similar  influences. 

Is  it  worth  while  to  turn  this  current  of  students  from  our 
doors ?  What  is  to  be  gained  by  it?  Is  it  worth  while  to  proclaim 
through  the  land,  or  to  allow  others  to  proclaim,  that 
our  Law  School  is  never  to  admit  into  one  of  its  chairs  of  instruc- 
tion any  person  who  has  acted  simply  as  a  magistrate  in  the  rendi- 
tion of  a  fugitive  slave?  Is  it  expedient  to  allow  others  to  say, 
that  a  man  who  has  already  served  in  one  of  those  chairs  to  the 
acceptance  of  the  Faculty,  has  been  ejected  from  it,  because  as  a 
magistrate  he  has  executed  this  law  of  the  United  States?  What 
Southern  parent  would  send  a  son  here  for  his  legal  education, 
after  he  had  seen  cause  to  believe  that  a  professor  or  a  lecturer 
had  been  dismissed  from  the  Law  School  for  such  a  reason  ? 

It  will  not  do  to  say  that  the  South  may  keep  their  sons  at 
home — that  the  Law  School  does  not  want  them.  The  Laiv 
School  wants  every  student  from  every  quarter  of  the  country, 
whom  a  broad  and  liberal  management  can  attract  to  its  halls. 
It  wants  them,  because  it  is  for  the  interests  of  sound  legal  learn- 
ing, good  statesmanship,  and  the  cultivation  of  good  feeling  be- 


ANTI-SLAVERY  PERIOD.  199 

tween  distant  sections,  that  they  should  come  here.  We  have  the 
means  in  our  hands  of  promoting  these  interests,  to  a  very  great 
extent ;  and  we  are  bound  to  use  those  means  as  a  Trust  for  the 
benefit  of  the  whole  country. 

It  is  worth  while  to  look  back  for  a  few  years,  and  to  see  what 
would  have  been  the  effect  of  a  practical  application  at  a  former 
period  by  the  Board  of  Overseers,  of  such  a  principle  of  action 
as  would  be  involved  in  the  rejection  of  Mr.  Loring,  for  the  rea- 
son we  are  now  considering.  It  would  have  caused  the  rejection 
of  Joseph  Story  from  the  Dane  Professorship ;  for  he,  too,  had, 
before  he  was  nominated  to  that  chair,  taken  part  in  the  execution 
of  the  Fugitive  Slave  Law  of  that  day.  .  .  . 

And  there  is  no  more  just  ground  for  saying  now  that  the 
moral  feeling  of  the  State  requires  the  rejection  of  Judge  Loring, 
than  there  would  have  been  in  that  day  for  saying  that  it  required 
the  rejection  of  Judge  Story.  Whether  done  now,  or  done  then, 
the  rejection  of  a  professor,  or  lecturer  for  this  cause,  would  be 
precisely  the  same  declaration,  namely,  that  a  magistrate  who  ex- 
ecutes the  laws  of  the  United  States  for  the  rendition  of  fugitives, 
shall  not,  however  well  qualified  he  may  be,  be  a  teacher  at  the 
Law  School  of  Harvard  College.  If  this  principle  of  action  had 
been  adopted  in  1829,  would  Massachusetts  ever  have  had  such  a 
Law  School  as  she  has  had  for  nearly  thirty  years?  Would  the 
Law  School  of  Harvard  College  ever  have  been  of  any  more  im- 
portance than  it  had  been  before  the  year  1829?  Would  it  ever 
have  had  Nathan  Dane's  donation?  Would  it  ever  have  had 
Judge  Story  as  Professor  and  the  great  accession  of  income  which 
he  earned  for  the  institution  in  a  service  of  sixteen  years,  the  ac- 
cumulations of  which  are  now  part  of  its  invested  funds?  The 
great  usefulness  of  that  institution  depends  upon  this  capacity  to 
draw  students  from  every  part  of  the  country ;  and  it  is  the  only 
Law  School  in  this  Union,  that  has  that  capacity,  in  any  import- 
ant degree.  May  it  be  long,  before  this  capacity  is  lost. 

The  Overseers,  however,  Governor  Gardner  presiding,  on  Feb- 
ruary 15.  1855,  refused  to  concur  with  the  Corporation,  by  a  vote 
of  10  to  20.  At  this  meeting,  the  following  men,  prominent  in 
public  life,  were  present :  Abbott  Lawrence,  George  S.  Bout  well, 
George  N.  Briggs,  Reuben  A.  Chapman,  John  H.  Clifford,  Samuel 
Hoar,  Emory  Washburn,  Robert  C.  Winthrop,  James  Walker, 
and  twenty-one  others,  including  the  Lieutenant  Governor,  the 
President  of  the  Senate,  the  Speaker  of  the  House,  the  Secretary 
of  the  Board  of  Education  and  seven  Clergymen.  ( i ) 


(i)  The  Boston  Daily  Advertiser  of  Feb.  16,  1855,  says  that  though  the 
vote  was  by  ballot  it  was  understood  to  have  been  as  follows — for  Loring; 
Emory  Washburn,  John  H.  Clifford,  Abbott  Lawrence,  Robert  C.  Win- 
throp, Reuben  A.  Chapman,  Rev.  E.  S.  Gannett,  Rev.  G.  W.  Blagden,  Rev. 


200  HARVARD  LAW  SCHOOL. 

The  matter  being  thus  settled,  the  Law  Faculty  sought  some 
other  man  for  the  position,  and  finally,  largely  on  Parsons'  recom- 
mendation, on  a  report  of  Chief  Justice  Shaw  and  Charles  G. 
Loring,  the  Corporation,  by  votes  of  March  17  and  May  18, 
1855,  voted  to  appoint  as  Lecturer  at  a  salary  of  $1500  Emory 
Washburn,  who  had  just  been  defeated  for  the  Governorship.  ( I ) 

Of  this  vote  the  Boston  Daily  Advertiser  said  March  19,  1855  : 

This  is  an  excellent  appointment  and  one  to  which  we  do  not 
see  that  any  objection  can  be  raised.  ...  It  will  doubtless 
be  an  additional  recommendation  in  some  quarters  that  ex-Gov- 
ernor Washburn  is  neither  a  graduate  of  Harvard  College  nor  a 
Unitarian. 

March  9,  1855,  Governor  Gardner  appointed  Professor  Parker 
as  a  Commissioner  together  with  William  A.  Richardson  of 
Lowell  and  Andrew  A.  Richmond,  to  revise,  consolidate  and  ar- 
range the  general  statutes  of  Massachusetts.  (2)  Parker  entered 

T.  Worcester,  Rev.  James  Walker,  W.  T.  Walker  (10);  against  Loring; 
Governor  H.  J.  Gardner,  Lieut.  Gov.  S.  Brown,  H.  W.  Benchley,  Presi- 
dent of  the  Senate,  Daniel  C.  Eddy,  Speaker  of  the  House,  Rev.  Barnes 
Sears,  Sec.  of  the  Board  of  Education,  ex-Gov.  George  N.  Briggs,  ex-Gov. 
George  S.  Boutwell,  Samuel  Hoar,  S.  D.  Bradford,  Francis  Basset,  George 
Morey,  Nathaniel  B.  Shurtleff,  Joel  Hayden,  Thomas  Russell,  D.  W.  Al- 
vord,  N.  Cogswell,  H.  B.  Wheelwright,  Rev.  Hosea  Ballou,  Rev.  R.  A. 
Miller,  Rev.  J.  H.  Twombly  (20). 

The  following  members  were  absent,  Caleb  Gushing,  David  Sears,  Mar- 
cus Morton,  Julius  Rockwell,  Richard  Fletcher,  Rev.  B.  Stow,  S.  M.  Wor- 
cester (7). 

The  opponents  of  Judge  Loring  did  not  rest  with  this  successful  attack 
upon  him.  The  Massachusetts  Legislature  in  1855  attempted  to  procure  his 
removal  as  Probate  Judge ;  but  Governor  Gardner  declined  to  remove  him 
(see  Message  of  May  30,  1857).  Governor  Banks,  however,  yielded  to  their 
desires  and  removed  him  from  office  on  March  15,  1858.  Within  two 
months,  Loring  was  appointed  by  President  Buchanan  as  Judge  of  Court  of 
claims  in  Washington,  which  position  he  held  until  1877.  He  died  June  19, 
1890. 

For  interesting  accounts  of  the  proceedings  in  the  Legislature,  see  Rich- 
ard H.  Dana,  by  Charles  Francis  Adams ;  also  Life  of  William  Adams 
Richardson,  by  Frank  W.  Hackett ;  and  The  Removal  of  Judge  Loring  in 
Law  Reporter,  Vol.  XVIII  (May,  1855). 

(1)  The  vote  was  concurred  in  by  the  Overseers,  March  22,  1855,  by  a 
unanimous  vote. 

See  also  letters  of  Parsons  to  Walker,  February  23  and  25,  1855.  Harv. 
Coll.  Papers,  2nd  Series,  Vol.  XXII. 

Parker  wrote  to  President  Walker  Feb.  25,  1855,  (Harv.  Coll.  Papers, 
2nd  Series,  Vol.  XXII)  :  "If  the  Corporation  shall  deem  it  expedient  to 
make  another  appointment,  I  can  only  say  that  I  know  no  person  more  like- 
ly to  give  satisfaction  than  Gov.  Washburn." 

(2)  The  labors  of  this  Commission  were  not  completed  until  the  au- 
tumn of  1858;  and  their  report  was  submitted  to  the  Legislature  in  Janu- 
ary. 1859.    The  whole  of  the  work  during  the  last  year  of  its  progress  had 
fallen  on  Parker  and  Richardson,  as  Richmond  was  disabled  by  illness. 


ANTI-SLAVERY  PERIOD.  201 

on  the  work  with  vigorous  interest  and  at  once  gave  up  half 
of  his  Law  School  duties  and  salary  to  Washburn.  He  also 
expressed  his  readiness  to  resign  at  any  time  if  the  Corporation 
should  desire. (i)  The  Corporation  was  far  from  desiring  any 
such  arrangement ;  as  they  highly  esteemed  "the  benefit  of  Park- 
er's great  experience  and  eminent  qualifications  as  an  instructor," 
and  they  voted  to  excuse  him  from  half  his  duties  and  to  fix  his 
salary  at  $2000.  The  loss  of  so  much  of  Parker's  time,  however, 
made  it  imperative  that  the  project  for  a  third  Professorship 
should  be  again  taken  up. 

On  January  26,  1856,  the  office  of  University  Professor  of  Law 
was  again  created,  the  Professor  to  be  a  member  of  the  Law 
Faculty  and  charged  with  the  same  duties  of  government  and 
instruction  as  the  other  Professors,  except  that  he  was  not  to  be 
obliged  to  reside  in  Cambridge,  until  so  required  by  the  Corpora- 
tion ;  and  on  February  23,  Emory  Washburn  was  appointed 
to  fill  the  new  chair.  These  votes  of  the  Corporation  were  con- 
curred in  by  the  Overseers  on  February  14  and  28,  1856;  and 
thus  the  struggle  between  the  two  governing  bodies  was  ended. ( i) 


A  special  session  of  the  Legislature  was  held  in  September,  and  the  re- 
vision as  modified  by  the  work  of  a  Recess  Committee  of  the  Legislature, 
was  enacted  Dec.  28,  1859,  as  the  "General  Statutes." 

(i)  See  letter  of  Parsons  to  Walker,  Dec.  28,  1855.  Harv.  Coll.  Papers, 
2nd  Series,  Vol.  XXII. 

Letter  of  Parker  to  Corporation,  Jan.  1856.  Harv.  Coll.  Papers,  2nd 
Series,  Vol.  XXIII. 

See  also  Report  of  Committee  of  Corporation,  adopted  Aug.  25,  1855. 

(i)  See  long  explanatory  Report  of  Committee  of  Board  of  Overseers 
of  which  Francis  Bassett  was  again  Chairman,  presented  Feb.  14,  1856. 

The  statutes  of  the  University  Professorship  finally  adopted  were  as  fol- 
lows: 

"That  there  be  established  a  University  Professorship  of  Law  subject  to 
the  statutes  and  Regulations  herein  provided. 

.1  A  University  Professor  of  Law  shall  be  appointed  by  the  President 
and  Fellows  of  the  College  with  the  consent  of  the  Overseers,  who  shall 
perform  such  duties  of  instruction  and  government  in  the  Dane  Law  School 
as  may  from  time  to  time  be  required  of  him,  and  hold  his  office  during  the 
pleasure  of  the  President  and  Fellows  and  Overseers. 

II.  The  University  Professor  of  Law  thus  appointed  shall  be  a  member 
of  the  Law  Faculty  of  the  Dane  Law  School  and.  with  the  President  and 
other  members  of  the  Faculty,  shall  be  charged  with  the  Government  and 
instruction  of  the  School. 

III.  Until  the  further  order  of  the  President  and  Fellows  of  the  Col- 
lege, it  shall  be  the  duty  of  the  University  Professor  to  perform  the  duties 
of  lecturing  and  attending  the  other  exercises  of  the  School  which  have 
been  heretofore  performed  by  a  Professor ;  but  it  shall  not  be  deemed  the 
duty  of  the  University  Professor  thus  appointed  to  reside  at  Cambridge 
until  required  by  an  act  of  the  President  and  Fellows,  and  reasonable  no- 
tice thereof  given  to  such  Professor. 

IV.  This  Professorship  shall  continue  until  the  President  and  Fellows 


202  HARVARD  LAW  SCHOOL. 

EMORY   WASHBURN. 

Emory  Washburn  was  born  in  Leicester,  Mass.,  February  14, 
1800.  His  father  died  when  he  was  seven  years  old  and  he  was 
brought  up  by  his  mother.  He  was  fitted  for  college  at  Leicester 
Academy,  and  entered  Dartmouth,  influenced  by  the  fact  that  the 
pastor  of  the  church  in  Leicester,  Rev.  Zephaniah  S.  Moore,  was 
Professor  of  Ancient  Languages  in  that  College.  In  1815  Rev. 
Mr.  Moore  was  made  President  of  Williams  College,  and  being 
greatly  interested  in  Washburn,  took  him  there  as  a  member  of 
his  own  family.  Washburn  graduated  in  1817,  the  year  of  the 
founding  of  the  Harvard  Law  School,  and  commenced  the  study 
of  law  with  Judge  Dewey  of  the  Massachusetts  Supreme  Court. 
In  1819-20,  he  studied  at  the  Harvard  Law  School  under  Pro- 
fessor Stearns;  and  in  1821,  he  was  admitted  to  the  Bar.  In 
1826  and  1827,  he  was  a  member  of  the  State  Legislature  and  in 
behalf  of  a  committee  of  the  House  made  the  first  report  that 
suggested  the  feasibility  of  a  railroad  between  Boston  and  Albany. 
He  settled  in  Worcester  in  1828,  where  he  lived  until  his  re- 
moval to  Cambridge  in  1856.  The  many  offices,  municipal,  educa- 
tional, literary,  and  charitable,  held  by  him  in  after  years,  testify 
to  the  confidence  reposed  in  him  by  the  public.  Among  these 
numerous  offices  were — member  of  the  State  Board  of  Education, 
Trustee  of  Williams  College,  member  of  the  International  Code 
Committee,  President  of  the  Trustees  of  the  School  for  the  Idiotic 
and  Feeble  minded,  Director  of  the  American  Social  Science 
Association,  President  of  the  Trustees  of  Donations  for  Educa- 
tion in  Liberia,  member  of  the  Massachusetts  Historical  Society, 
the  American  Antiquarian  Society,  and  the  American  Academy 
of  Arts  and  Sciences.  At  the  same  time,  he  acquired  a  very  large 
law  practice.  He  served  in  the  State  House  of  Representatives 
again  in  1838,  and  in  the  Senate  as  Chairman  of  the  Judiciary 
Committee,  in  1841  and  1842.  He  was  appointed  Judge  of  the 
Court  of  Common  Pleas  in  1844,  and  served  until  1848. 

In  1853,  while  absent  in  Europe,  he  was  nominated  for  Gover- 
nor by  the  Whigs,  without  his  knowledge,  and  served  one  year ; 
but  at  the  election  of  1854  he  was  defeated  in  the  irresistible 
sweep  made  by  the  Know  Nothing  party. 


of  the  College,  with  the  consent  of  the  Overseers,  shall,  in  the  exercise  of 
their  judgment,  having  regard  to  the  exigencies,  resources  and  best  inter- 
ests of  the  School,  determine  to  discontinue  the  same." 


Emory  Washburn 


ANTI-SLAVERY  PERIOD.  203 

Of  his  character  as  a  lawyer,  his  intimate  friend  and  legal 
associate,  Hon.  George  F.  Hoar,  said  ( i )  : 

On  the  whole,  the  most  successful  of  the  Worcester  Bar  in 
my  time  in  the  practice  of  his  profession,  was  Emory  Washburn. 
He  was  a  man  of  less  intellectual  power  undoubtedly  than  either 
of  his  great  contemporaries  and  antagonists,  Allen,  Merrick,  or 
Thomas.  Yet  he  probably  won  more  cases  year  in  and  year  out 
than  either  of  them.  He  was  a  man  of  immense  industry.  .  .  . 
indefatigable  in  his  service  of  his  clients,  often  kept  at  work  until 
one  or  two  o'clock  in  the  morning.  His  mind  was  like  a  steel 
spring,  pressing  in  every  part  of  the  other  side's  case.  No 
strength  of  evidence  to  the  contrary,  no  current  of  decisions  set- 
tling the  law,  would  prevent  Washburn  from  believing  that  his 
man  was  the  victim  of  prejudice  or  persecution  or  injustice.  But 
his  sincerity,  his  courtesy  of  manner  and  his  kindness  of  heart, 
made  him  very  influential  with  juries,  and  it  was  rare  that  a  jury 
sat  in  Worcester  county  that  held  not  half  a  dozen  of  Washburn's 
clients  among  their  number.  I  was  once  in  a  very  complicated 
real  estate  case  as  Washburn's  associate;  Charles  Allen  and  Mr. 
Bacon  were  on  the  other  side.  Mr.  Bacon  and  I  who  were 
juniors,  chatted  about  the  case  just  before  the  trial.  Mr.  Bacon 
said,  "Why,  Hoar,  Emory  Washburn  doesn't  understand  that  case 
the  least  in  the  world."  I  said,  "No,  Mr.  Bacon,  he  doesn't  under- 
stand the  case  the  least  in  the  world.  But  you  may  depend  upon 
it,  he  will  make  the  jury  misunderstand  it  just  as  he  does,"  and 
he  did.  .  .  . 

He  was  public  spirited,  wise,  kind  hearted,  always  ready  to  give 
his  service  without  hope  of  reward  or  return,  to  any  good  cause. 

He  left  no  duty  undone.  Edward  Everett  Hale  used  to  say, 
"If  you  want  anything  done,  go  to  the  busiest  man  in  Worcerter 
to  do  it — Emory  Washburn." 

.  .  .  He  was  a  thorough  gentleman,  thorough,  courteous, 
well  bred,  and  with  an  entirely  sufficient  sense  of  his  own  dignity. 
But  he  had  little  respect  for  any  false  notions  of  gentility,  and 
had  a  habit  of  going  straight  at  any  difficulty  himself. 

Rev.  A.  P.  Peabody  said  of  him  at  the  time  of  his  death  in 
1878(2): 

There  was  in  him  a  simplicity,  a  transparency  of  character, 
which  won  the  universal  respect  of  those  who  differed  from  him 
the  most  widely  in  opinion  and  policy.  .  .  .  He  was  thoroughly 
independent.  .  .  .  He  was  remarkable  for  his  will  and  power  to 

(1)  Autobiography  of  Serenty  Years,  by  George  F.  Hoar,  Vol.  II. 

(2)  Memoir  of  Einor\  Washburn,  by  A.  P.  Peabody  in  Mass.  Hist.Soc. 
Proc.,  Vol.  XVIII,  (1879-80). 


204  HARVARD  LAW  SCHOOL. 

endure  continuous  labor.  While  at  the  Bar,  his  industry  was  al- 
most beyond  belief.  His  office  was  open  to  clients  from  the  early 
morning  to  a  late  evening  hour.  .  .  .  After  his  removal  to  Cam- 
bridge, he  allowed  himself,  as  advancing  age  demanded,  a  larger 
amount  of  repose  and  leisure ;  yet  his  working  hours  still  exceed- 
ed those  of  almost  any  other  man.  .  .  . 

In  private  life  none  that  enjoyed  his  intimacy  can  need  our 
testimony  to  his  uniform  courtesy,  kindness,  sympathy  and 
thoughtful,  generous  care  for  whatever  could  conduce  to  their 
happiness  and  well  being. 

THE  PARLIAMENT. 

While  the  governing  boards  of  the  College  were,  thus  influ- 
enced by  the  political  feelings  engendered  by  the  slavery  question, 
it.  was  not  surprising  that  the  politics  of  the  day  should  have 
their  effect  on  the  students  of  the  Law  School.  This  was  mani- 
fested in  the  Debating  Society  which  had  existed  for  some  time 
among  the  students,  known  as  the  "Parliament".  A  similar  society 
had  existed  for  the  discussion  of  topics  of  the  day  and  the  prac- 
tice of  Parliamentary  Law  in  the  early  days  of  the  School,  but  it 
had  died  out.  When  Luther  S.  dishing,  author  of  Cushing's 
Manual,  was  appointed  Lecturer,  interest  in  the  subject  revived; 
and  the  "Parliament"  or  "Assembly"  was  formed  in  1849-50, 
described  by  Charles  R.  Codman  (L.  S.  1851-52)  (i)  : 

The  Assembly  consisted  of  all  the  students,  who  elected  a 
speaker  and  clerk  for  three  months.  I  remember  I  succeeded 
James  C.  Carter  as  speaker.  We  discussed  political  questions. 
Resolutions  on  political  subjects  were  presented.  We  were 
greatly  interested  in  parliamentary  law  and  practice,  and  points 
of  order  were  very  frequent,  and  the  speaker  was  often  put  to 
his  trumps.  I  have  served  in  the  Massachusetts  Legislature  for 
some  years  and  I  think  that  the  presiding  officers  of  that  body  had 
a  much  easier  time  than  the  speaker  of  the  Law  School  As- 
sembly. 

The  debates  gradually  centered  about  the  slavery  question, 
and  they  became  so  warm  that  it  frequently  seemed  as  if  they 
would  end  in  blows.  In  1853,  the  society  was  actually  broken  up 
for  a  term'by  the  difference  between  the  Northern  and  the  South- 
ern students.  Judge  Charles  E.  Phelps  (L.  S.  1852-53)  writes (2)  : 


(1)  See  letter  to  the  author   (1907). 

(2)  See  letter  to  the  author   (1907). 


ANTI-SLAVERY  PERIOD.  205 

The  most  notable  event  in  my  time  was  the  breaking  up  of  the 
Parliament  in  1853.  This  was  really  a  rehearsal  in  miniature  of 
the  secession  drama.  There  was  no  particular  occasion  for  it. 
The  country  was  then  taking  a  rest  from  sectional  agitation.  The 
Compromise  Measures  of  1850  had  been  apparently  accepted  as 
a  finality.  The  storm  caused  by  the  repeal  of  the  Missouri  Com- 
promise did  not  burst  until  a  year  or  two  later.  There  was  no 
practical  question  of  sectional  division  then  before  Congress  or 
the  country. 

The  real  significance  of  this  phenomenon,  or  portent,  as  it  might 
well  be  called,  was  this.  It  clearly  showed  that  Northern  and 
Southern  men  could  not  meet  on  the  common  ground  of  a  debat- 
ing society  and  discuss  even  an  abstract  question  relating  to 
slavery,  without  coming  to  a  crisis,  and  a  rupture.  In  effect,  like 
the  schisms  in  churches,  and  the  breaking  up  of  parties,  it  was  one 
of  the  forerunners  of  Civil  War. 

I  must  admit  that  I  was  one  of  the  seceders.  I  went  to  Cam- 
bridge decidedly  pro-slavery  in  feeling,  the  result  not  of  in- 
vestigation or  reflection,  but  of  association  and  sympathy.  In 
fact  my  feeling  was  such  that  I  was  mortified  at  not  having  had 
the  good  taste  to  be  born  South  of  Mason  and  Dixon's  line.  If 
anyone  had  at  that  time  predicted  that  in  less  than  ten  years  I 
would  be  found  in  a  Northern  army  invading  the  South,  at  the 
head  of  a  Maryland  Union  brigade,  I  should  have  considered  him 
crazy. 

The  entire  change  in  my  point  of  view  dates  back  to  this 
secession  movement  at  Cambridge.  It  was  not  sudden.  It  was 
the  gradual  and  slow  result  of  many  heart  to  heart  talks  with 
extreme  Southern  students,  avowed  disunionists,  especially  fire- 
eaters  from  the  cotton  States. 

In  1855,  the  Parliament  was  formally  dissolved  by  the  Law 
Faculty,  owing  to  the  action  taken  by  the  students  on  the  ad- 
verse vote  of  the  Overseers  on  Judge  Loring's  appointment. 
Loring  had  been  extremely  popular  with  his  pupils,  and  they  had 
keenly  resented  the  treatment  awarded  him. 

Accordingly  a  move  was  made  in  the  Parliament,  March  23, 
1855,  to  pass  resolutions  on  the  subject.  What  followed  is  of 
peculiar  interest  as  involving  a  pupil  who  later  became  one  of  the 
great  Professors  of  the  School — James  B.  Thayer(i)  : 

The  Southerners  and  their  sympathizers  in  the  Law  School 
moved  in  their  Parliament  a  vote  of  censure  upon  the  Overseers. 
The  motion  was  opposed  on  various  parliamentary  grounds,  but 
finally  the  majority  determined  to  put  the  vote  through  in  disre- 

(i)  James  Barr  Ames  in  Proc.  Amer.  Acad.  of  Arts  and  Sciences,  Vol. 
XXXVII. 


206  HARVARD  LAW  SCHOOL. 

/ 

gard  of  orderly  procedure,  and  the  Clerk  was  directed  to  call 
the  roll  of  yeas  and  nays.  Mr.  Thayer,  who  was  Clerk,  rose,  and 
in  a  quiet  but  impressive  manner  declined  to  be  a  party  to  this  un- 
parliamentary action,  resigned  his  office,  and  walked  away  from 
his  desk.  The  motion  was  ultimately  carried,  but  Mr.  Thayer's 
calm,  dignified  rebuke  of  their  proceedings  robbed  the  victory 
of  well-nigh  all  its  glory  even  in  the  minds  of  the  victors. 

The  resolutions,  as  finally  passed,  testified  to  the  affection  felt 
for  Loring  and  to  the  students'  disapproval  of  the  Overseers ;  and 
were  sent  to  the  Boston  newspapers,  March  26  as  follows : 

Whereas  the  Corporation  of  Harvard  University  appointed  the 
Hon.  Edward  G.  Loring  Lecturer  in  the  Dane  Law  School,  and 
the  Overseers  have  arbitrarily  refused  to  confirm  the  same,  there- 
fore be  it 

Resolved  by  us  members  of  the  Dane  Law  School  in  Assembly 
convened,  that  we  fully  concur  in  the  opinion  of  the  Corporation, 
as  by  their  election  expressed,  that  the  personal  worth,  intellec- 
tual and  legal  abilities,  and  acquirements  of  Mr.  Loring,  eminent- 
ly qualify  him  for  the  office  of  Lecturer. 

Resolved,  that  Mr.  Loring's  system  of  instruction — comprising 
a  clear  analysis  of  Common  Law  principles  and  an  exposition  of 
their  reasons  and  applications,  enriched  by  copious  illustrations 
from  the  Civil  Law — was  calculated  to  a  rare  degree  to  afford  a 
knowledge  of  the  topics  discussed,  at  once  broad  and  minute,  and 
we  deeply  regret  his  removal  as  bringing  a  loss  to  ourselves  and 
the  science  of  law. 

Resolved,  that  we  regard  the  rejection  of  Mr.  Loring  as  tending 
to  restrain  the  freedom  of  judicial  opinion,  and  as  sanctioned 
neither  by  justice  nor  by  wise  policy. 

The  Boston  Daily  Advertiser  said  editorially : 

We  are  informed  that  the  passage  of  the  resolutions  was  op- 
posed by  a  decided  and  respectable  minority,  who  objected  to 
the  imputations  upon  the  Board  of  Overseers  as  indecorous,  and 
who  moreover  thought  the  Assembly  an  inappropriate  place  for  the 
consideration  of  resolutions  which  in  their  opinion  should  have 
emanated  from  a  meeting  of  the  law  students  called  for  the  pur- 
pose. .  .  .  We  understand,  however,  that  they  received  the 
votes  of  56  members  which  was  a  majority  of  those  attending 
the  meeting. 

We  are  gratified  to  learn  that  the  feeling  of  regard  for  Judge 
Loring  and  of  regret  at  the  loss  of  his  instructions,  is  universal 
among  the  law  students,  and  that  no  objection  to  the  passage  of 
the  resolutions  sprung  from  the  want  of  this  feeling. 

As  a  consequence  of  this  action,  however,  the  Law  Faculty,  al- 


AXTI-SLAVERY   PERIOD.  207 

though  undoubtedly  sympathizing  with  the  students'  sentiments 
passed  a  vote,  March  29,  1855,  abolishing  the  Debating  Club(i)  : 

Resolved  by  the  Faculty  that  any  expression  by  the  students 
of  their  respect  and  regard  for  Judge  Loring,  of  their  approval 
of  his  course  of  instruction  and  of  their  regret  that  his  labors  in 
the  School  had  been  terminated,  if  unaccompanied  with  terms  of 
censure  upon  the  action  of  the  Board  of  Overseers  would  have 
met  the  entire  approbation  of  the  Faculty.  But  resolved  further, 
that  the  passage  and  publication  of  the  resolution  which  char- 
acterizes the  proceedings  of  the  Board  of  Overseers  as  arbitrary ; 
more  especially  after  the  students  had  received  publicly  and 
privately  the  assurances  of  the  members  of  the  Faculty  that  reflec- 
tions of  that  character  would  be  deemed  by  the  Faculty  improper 
and  inadmissible : — and  the  passage  and  publication  of  the  reso- 
lution in  which  an  opinion  is  expressed  that  the  action  of  the 
Overseers  is  calculated  to  restrain  the  freedom  of  judicial 
opinion,  and  as  sanctioned  neither  by  justice  nor  by  wise  policy ; 
constitute  a  breach  of  discipline  and  decorum,  are  disrespectful 
to  the  Faculty  as  well  as  to  the  Overseers,  and  demand  the  cen- 
sure of  the  Faculty. 

Whereupon  it  is  ordered  that  the  leave  for  the  organization 
and  meetings  of  the  Debating  Club  or  Assembly  be  recalled,  and 
that  the  same  be  dissolved. 

Resolved  that  the  President  be  requested  to  communicate  the 
foregoing  Resolutions  to  the  Board  of  Overseers. 

Notwithstanding  this  vote,  within  six  months  another  similar 
club  was  formed  in  September,  1855,  called  the  "Assembly  of  the 
Dane  Law  School",  which  was  approved  by  the  Law  Faculty. 

This  Club,  though  forbidden  by  its  rules  to  debate  the  danger- 
ous subject  of  slavery,  became  the  centre  of  much  heated  dis- 
cussion on  this  and  allied  topics  during  the  following  five  years 
before  the  war.  It  was  constituted  like  an  ordinary  legislative 
body  and  its  rules  and  orders  (as  revised  in  January,  1858,)  were 
as  follows :  Its  officers,  a  Speaker  and  a  Clerk,  were  chosen  by 
ballot,  each  month.  Meetings  were  held  on  Friday  evenings  up 
to  ten  o'clock.  There  were  standing  committees  of  three  mem- 
bers each,  to  whom  were  referred  the  various  measures  appropri- 
ate to  each,  and  from  which  elaborate  reports  were  received : 
Ways  and  Means,  Finance,  Claims,  Commerce,  Public  Lands,  Post 
Offices  and  Roads,  The  Judiciary,  Public  Expenditures,  Manufac- 
turers, Agriculture,  Indian  Affairs,  Military  Affairs,  Naval  Af- 
fairs, Foreign  Affairs,  Internal  Affairs,  Territories,  Dane  Law 

(i)     See  Harvard  College  Archives,  Reports  to  Overseers.   Vol.  XI. 


208  HARVARD  LAW  SCHOOL. 

School,  Roads  and  Canals,  Patents,  Public  Buildings  and 
Grounds,  Rules  and  Orders. 

At  the  meetings,  at  which  spectators  were  allowed  to  be  pres- 
ent, the  following  order  of  business  was  observed:  i.  Reading 
of  Journal.  2.  Election  of  officers.  3.  Receipt  of  petitions.  4. 
Reports  of  Committees.  5.  Resolutions  and  Motions  from  mem- 
bers generally.  6.  Orders  of  the  day. 

The  one  forbidden  topic  was  thus  provided  against  : 

7.  It  shall  be  the  duty  of  the  speaker  and  of  the  chairman  of 
the  committee  of  the  whole  to  rule  out  of  order  any  resolution, 
petition,  report,  bill,  motion,  debate,  or  remarks  involving  directly 
or  indirectly  the  subject  of  American  slavery;  and  his  ruling  shall 
be  final  and  without  appeal.  It  shall  be  his  duty  to  rule  out  of 
order  all  motions,  resolutions,  or  bills,  partaking  of  an  indelicate, 
trifling,  or  improper  character.  This  decision  shall  be  subject  to 
be  revised  on  an  appeal  seconded  by  three  members  of  the  As- 
sembly. The  speaker  shall  use  his  discretion  and  authority  in 
suppressing  levity,  disorder,  and  discord  and  in  promoting  order, 
interest,  and  dignity. 

Reference  to  this  Club  was  made  in  the  report  of  the  Pro- 
fessors, Dec.  28,  1859,  as  follows: 

Clubs  for  discussion  and  debate  are  instituted  by  the  students 
with  the  approbation  and  encouragement  of  the  Faculty.  The 
general  club  for  practice  in  Parliamentary  Law  excites  particular 
interest. 

The  interest  in  politics  was  not  confined  to  the  students  —  for 
Professor  Parker,  who  had  already  taken  an  interest  in  public 
affairs  now  began  to  appear  prominently  on  the  political  platform 
and  in  the  press;  and  Professor  Parsons  also  took  an  active 
interest  in  political  matters.  As  an  example  of  the  attitude  of  the 
Professors,  the  following  letter  from  John  C.  Douglass  (L.  S. 
?)  is  notable  (i)  : 


In  the  summer  of  1856  the  political  excitement  that  grew  out 
of  the  enactment  by  Congress  of  the  Kansas-Nebraska  bill,  and 
culminated  in  the  Border  war  in  Kansas,  entered  even  to  the  very 
conservative  people  of  Cambridge  and  Harvard  University.  The 
Professors  of  the  College  and  Law  School,  with  Professor  Felton 
at  their  head,  were  among  the  most  enthusiastic  supporters  of  the 
Free  State  Party.  They  made  speeches,  and  spent  their  money 
liberally  in  the  work.  I  at  once  enlisted  in  the  cause,  and  was  so 

(i)     See  letter  to  author   (1907). 


ANTI-SLAVERY  PERIOD.  209 

encouraged  in  it  by  the  Professors,  that  when  I  proposed  to  go 
to  the  front  in  Kansas,  the  Faculty  immediately  said  to  me,  "Yes, 
go,  and  we  will  take  care  of  you  here,  and  will  graduate  you  with 
your  class,  the  same  as  if  you  were  here,  and  in  due  time  we  will 
send  your  diploma  to  you."  This  promise  was  kept,  and  the 
document  was  forwarded  to  me  in  the  summer  of  1857,  when  my 
class  graduated.  This  act  shows  how  the  big  hearts  of  these 
dignified  and  conservative  Professors  and  learned  j.udges  respond 
to  freedom's  call. 

When  the  news  came  of  the  assault  of  Brooks  upon  Sumner 
in  the  United  States  Senate,  May  22,  1856,  a  public  indignation 
meeting  was  held  in  Cambridge  on  June  2,  at  which  both  Pro- 
fessors Parker  and  Parsons  spoke,  together  with  Judge  Willard 
Phillips,  Jared  Sparks,  President  Felton,  Longfellow,  Dana  and 
others.  In  his  vigorous  speech  Parker  said : 

The  felon  blow  which  struck  down  the  citizen  and  the  senator, 
prostrated  at  the  same  time  the  privileges  of  the  Senate  and  the 
freedom  of  debate  guaranteed  by  the  Constitution  of  the  United 
States — the  last  of  a  series  of  outrages — which  have  made  the 
capitol  little  better  than  a  den  of  wild  beasts.  .  .  .  For  my- 
self personally  I  am  perhaps  known  to  most  of  you  as  a  peaceable 
citizen,  reasonably  conservative,  devotedly  attached  to  the  Con- 
stitution, and  much  too  far  advanced  in  life  for  gasconade ;  but 
under  present  circumstances,  I  may  be  pardoned  for  saying  that 
some  of  my  father's  blood  was  shed  on  Bunker  Hill,  at  the  com- 
mencement of  one  revolution,  and  that  there  is  a  little  more  of 
the  same  sort  left,  if  it  shall  prove  that  need  be,  for  the  beginning 
of  another. 

These  were  fiery  words  for  a  man  of  sixty-one  years  of  age.  An 
account  of  this  speech  in  the  Edinburgh  Review,  October,  1856, 
says: 

The  most  remarkable  of  all  the  speeches,  which  for  earnestness 
and  solemnity  of  denunciation  has  not  been  anywhere  surpassed 
— a  model  of  temperance  in  the  utterance  of  righteous  indigna- 
tion and  a  most  pregnant  sign  of  the  times  in  America.  .  .  . 
Deeply  indeed  must  the  independent  spirit  of  New  England  have 
been  stirred,  when  such  words  can  be  wrung  from  such  a  man  in 
such  a  place.  The  violence  of  the  South,  significant  as  it  is,  is 
much  less  significant  than  the  slow  intense  wrath  of  the  North. 

As  the  autumn  of  1856  approached,  it  became  evident  that  the 
old  Whig  party  was  dead.  A  few  of  the  leaders,  like  Robert  C. 
Winthrop,  and  George  S.  Hillard,  clung  to  the  shattered  frag- 

14 


2io  HARVARD  LAW  SCHOOL. 

ment  of  the  old  political  organization,  and  joined  in  nominating 
Millard  Fillmore,  as  the  "American"  candidate  for  the  Presi- 
dency; but  the  movement  was  practically  a  farce.  Some  strong 
Whigs,  like  Rufus  Choate  and  many  of  the  Webster  Whigs,  who 
regarded  the  new  Republican  party  as  a  "sectional",  "geographi- 
cal" party,  which  was  bound  to  dissolve  the  Union,  joined  the 
Democrats  in  voting  for  Buchanan,  as  a  choice  of  evils.  ( i ) 

The  Republicans  nominated  John  C.  Fremont.  Such  being  the 
confused  political  condition,  Judge  Parker,  being  strongly  in 
favor  of  the  Republican  party,  felt  that  he  could  not  remain  quiet ; 
and  accordingly,  on  October  i,  1856,  he  delivered  an  elaborate 
address  to  the  citizens  of  Cambridge  on  The  True  Issue  and  the 
duty  of  the  Whigs,  which  gives  an  interesting  picture  of  his  po- 
litical views.  In  it  he  stated  that  he  came  before  them  "as  a  citi- 
zen of  Cambridge,  a  constitutional  lawyer,  if  you  please,  and 
especially  as  a  Whig,  as  one  who  has  been  a  Whig  since  the 
formation  of  the  Whig  party — a  conservative  Whig,  a  National 
Whig."  As  te  *he  Fugitive  Slave  Act,  he  said  that : 

It  could  not  have  had  my  vote,  because  there  is  no  provision 
in  it  securing  a  trial  to  the  fugitive  on  his  rendition  and  return, 
and  there  are  obnoxious  sections  which  serve  only  to  exasperate 
the  citizens  of  the  non-slave  holding  States  and  seem  almost 
designed  for  purposes  of  insult.  But  believing  it  to  be,  however 
unwise,  a  constitutional  enactment,  in  my  public  teachings  and 
private  discourse  I  have  maintained  the  constitutionality  of  that 
law,  and  stopped  a  religious  newspaper,  conducted  with  great 
ability,  on  account  of  my  disapproval  of  the  encouragement  it 
gave  to  a  forcible  resistance  to  the  execution  of  that  law. 

He  considered  the  platforms  of  the  various  parties  in  detail, 
and  pointing  out  the  inconsistencies  and  futilities  of  the  Whig 
nomination  of  Fillmore,  declined  to  follow  his  former  friends  in 
so  useless  a  course,  saying : 

I  may  be  old,  but  I  am  no  fogy.  If  there  is  to  be  a  great  politi- 
cal battle  in  which  the  slave  power  assuming  the  name  of  Democ- 

(i)  Choate  wrote  to  the  Maine  Whig  State  Central  Committee,  August 
9,  1856: 

"The  question  for  each  and  every  one  of  us  is  just  this — by  what  vote 
can  I  do  most  to  prevent  the  madness  of  the  times  from  working  its 
maddest  act — the  very  ecstacy  of  its  madness — the  permanent  formation 
and  the  actual  present  triumph  of  a  party  which  knows  one-half  of  Amer- 
ica only  to  hate  and  dread  it — from  whose  unconsecrated  .and  revolutionary 
banner  fifteen  stars  are  erased  or  have  fallen — a  party  founded  on  geo- 
graphical principles  endangers  the  Union." 


ANTI-SLAVERY  PERIOD.  211 

racy,  is  arrayed  against  the  personal  liberty  of  one  class  of  the 
people,  and  against  the  equal  political  rights  of  another  class,  I 
wish  to  enroll  myself  in  the  ranks  and  do  a  yeoman's  service.  I 
cannot  be  brought  into  the  field  in  the  heat  of  battle  under  any 
teachers — to  shoot  at  a  mark.  .  .  .  The  real  issue  in  the 
campaign  is  between  the  Democratic  and  the  Republican  parties 
— the  extension  or  non-extension  of  slavery. 

Although  Parker  was  careful  to  disclaim  speaking  for  the  Law 
Department  or  the  College,  or  as  the  Royall  Professor,  he  was 
vigorously  attacked  for  this  speech,  at  a  meeting  in  Faneuil  Hall 
two  weeks  later,  Oct.  16,  by  Robert  C.  Winthrop,  who  spoke  of, 

That  learned  head  of  the  neighboring  Law  School  who  has  felt 
called  upon  within  a  few  weeks  to  quit  his  official  chair  and  com- 
promise the  neutrality  of  his  position.  .  .  .  and  ridicule  the 
position  of  Mr.  Winthrop  and  Mr.  Hillard  at  the  late  Whig 
Convention.  I  shall  not  follow  his  example  further  than  to  say, 
that  I  would  be  greatly  relieved  as  a  friend  to  the  University  and 
the  Law  School,  if  I  could  have  as  clear  a  perception  of  the 
propriety  of  his  course  as  I  have  of  that  of  my  friend  Mr.  Hill- 
ard, or  even  of  my  own. 

To  this  Judge  Parker  replied,  pungently,  although  somewhat 
inconsistently,  by  quoting  the  provisions  of  the  Revised  Statutes 
of  Massachusetts,  Chapter  23,  Section  7,  regarding  the  duties  of 
the  Professors  at  Harvard : 

To  impress  on  the  minds  of  children  and  youth  committed  to 
their  care  and  instruction  the  principles  of  piety,  justice  and  a 
sacred  regard  to  truth,  love  to  their  country,  humanity  and  uni- 
versal benevolence,  sobriety,  industry,  and  frugality,  chastity, 
moderation,  and  temperance,  and  those  other  virtues  which  are 
the  ornament  of  human  society  and  the  basis  upon  which  a  re- 
publican constitution  is  founded  .  .  .  and  to  lead  their  pupils 
.  .  .  into  a  clear  understanding  of  the  tendency  of  the  above 
mentioned  virtues  to  preserve  and  perfect  a  republican  constitu- 
tion and  secure  the  blessings  of  liberty.  .  .  . 

He  further  retorted,  by  asking,  where  was  the  impropriety  "in 
attempts  to  disseminate  a  knowledge  of  the  true  principles  of  the 
Constitution" ;  and  closed  by  saying,  "I  was  not  before  aware  of 
the  fact  that  upon  great  questions  of  morals  and  politics,  involv- 
ing possibly  the  very  existence  of  a  free  government,  I  hold  any 
'neutral'  position." 

This  episode  has  been  described  at  some  length,  because  it  is 


212  HARVARD  LAW  SCHOOL. 

so  characteristic  of  the  man,  of  his  sturdy  pugnacity,  and  his 
decided  and  uncompromising  views  of  the  right.  His  course  did 
not,  however,  increase  his  popularity  with  the  controlling  powers 
at  Harvard  or  in  the  Law  School,  where  the  Southerners,  the 
Democracy,  and  the  conservative  Whigs  were  still  the  controlling 
force  and  the  Republicans  and  Abolitionists,  while  vigorous  in 
speech  and  in  debate,  comparatively  scanty  in  numbers.  The 
Corporation  was  strongly  Whig,  and  the  Board  of  Overseers  was 
composed  of  discordant  elements — a  number  of  the  Know  Noth- 
ing party,  several  pronounced  Abolitionists,  Republicans,  Whigs, 
and  a  few  Democrats. 

An  incident  during  these  ante-bellum  days  is  related  in  his 
Memoir  of  Parker,  by  George  S.  Hale  (L.  S.  1845-46),  which 
throws  light  on  the  conditions.  ( i )  It  is  stated  that  "one  day,  in  a 
lecture  on  Constitutional  Law,  Parker  referred  to  the  expulsion 
of  Hon.  Samuel  Hoar  of  Massachusetts  from  Charleston,  saying 
that  between  independent  States,  it  would  have  afforded  cause 
for  a  declaration  of  war.  Thereupon  many  Southern  students 
hissed  vigorously.  The  Northern  students  answered  by  ap- 
plause. Parker,  hurt  and  indignant,  demanded  apologies  which 
were  finally  given,  and  the  episode  ended.  There  were  frequent 
outbreaks,  however,  of  a  similar  kind." 

In  this  year  of  political  excitement,  1856,  an  event  of  great 
local  importance  to  Cambridge  took  place  in  the  opening  for 
public  travel  of  the  first  street  railway  chartered  in  Massachu- 
setts, the  Cambridge  Street  Railway  Company,  (incorporated  in 
1853).  This  event  was  dolefully  foreshadowed  in  an  article 
published  in  the  under-graduates'  Harvard  Magazine  (Vol.  I), 
on  The  Omnibus  describing, 

The  melancholy  prediction  that  in  the  course  of  a  few  short 
years  the  railroad  car  will  oust  the  omnibus  from  Main  Street, 
and  no  more  at  nine  of  a  Saturday  morning  will  Jehu's  "Ready 
for  Boston"  gladden  the  ears  of  homesick  freshmen.  Dreadful 
to  tell,  the  prophecy  is  near  fulfilment  the  wicked  have  triumphed 
and  the  iron  abomination  is  already  past  the  bridge. 

The  opening  was  thus  described  in  the  Boston  Transcript 
March  27,  1856: 

Cambridge   Horse   Railroad — Five   trips   were   made   on    the 


(i)     See  American  Law  Review,  Vol.  X. 


ANTI-SLAVERY  PERIOD.  213 

road  yesterday,  to  the  perfect  satisfaction  of  a  throng  of  pas- 
sengers. It  was  demonstrated  that  two  horses  tandem  made  the 
trip  with  a  car  containing  forty  passengers  with  more  ease  than 
they  could  have  drawn  an  empty  omnibus  on  the  street.  A 
special  trip  for  the  observation  of  a  number  of  gentlemen  was 
made  early  this  afternoon.  The  cars  will  continue  running  regu- 
larly next  week,  and  the  tracks  will  be  completed  the  whole 
distance  between  the  Revere  House  and  the  Brattle  House  during 
the  month  of  April.  This  is  the  first  horse  railroad  for  passen- 
gers in  New  England,  and  the  first  one  is  that  between  Schen- 
ectady  and  Saratoga  Springs,  which  was  built  about  twenty-three 
years  ago. 

The  cars  of  those  days  were  small,  sixteen  feet  in  length,  seat- 
ing twenty  passengers.  The  fare  was  ten  cents  between  Harvard 
Square  and  Bowdoin  Square ;  and  the  running  time  was  thirty 
minutes.  In  March,  1857,  the  Harvard  Magazine  contained  an 
article  on  the  Horse  Railroad,  expressing  the  welcome  given  to 
the  new  mode  of  conveyance: 

"Ready  for  Boston,"  cried  the  conductor  one  Saturday  morn- 
ing. The  two  Freshmen  with  their  Sunday  beavers  and  the 
Proctor  with  a  carpet  bag  who  were  passing  Wood  and  Hall's, 
started  upon  the  run.  The  Law  Student  on  Wiley's  steps  threw 
away  his  cigar  and  drew  on  his  kid  gloves.  The  bell  sounded  and 
we  were  off.  .  .  .  The  timid  Freshman  who  has  obtained 
leave  of  the  Proctor  to  be  present  at  a  dramatic  performance  in 
company  with  his  parents!  the  Sophomore,  who  has  been  tread- 
ing the  boards  as  a  utility  man ;  and  the  potent,  grave  and  rev- 
erend Senior  who  has  been  transformed  for  the  nonce  into  a  but- 
terfly of  fashion,  .  .  .  instead  of  wasting  their  patrimony 
in  stable  bills  or  testing  their  pedestrian  abilities,  can  quietly  walk 
to  the  station,  seat  themselves  luxuriously  in  the  corner  of  the 
vehicle  awaiting  them,  and  after  a  half  hour's  nap  awake  in 
Cambridge,  and  go  to  their  rest,  blessing  the  inventor  of  this 
model  conveyance. 

A  more  pessimistic  view  of  the  effect  of  the  new  means  of 
conveyance  is  to  be  found,  five  years  later,  in  President  Felton's 
Annual  Report  for  1862-63 : 

The  passage  of  horse  cars  to  and  from  Boston,  nearly  if  not 
quite  a  hundred  times  a  day,  has  rendered  it  practically  impos- 
sible for  the  Government  of  the  College  to  prevent  our  young 
men  from  being  exposed  to  all  the  temptations  of  the  city. 

The  year  1857  was  made  memorable  in  the  history  of  law  by 


214  HARVARD  LAW  SCHOOL. 

the  decision  of  the  United  States  Supreme  Court,  on  March  6,  of 
the  case  of  Sandford  v.  Dred  Scott — of  which  the  Springfield  Re- 
publican wrote  editorially  and  prophetically,  on  March  u,  "The 
history  of  judicial  decisions  in  this  country  contains  nothing  so 
important  as  this.  .  .  .  The  people  are  the  court  of  last  resort  in 
this  country.  They  will  discuss  and  review  the  action  of  the  Su- 
preme Court  and  if  it  presents  itself  in  a  practical  question  will 
vote  against  it." 

Lowell,  writing  to  Charles  Eliot  Norton  in  Italy,  March  21, 
said: 

Of  course  you  have  heard  of  the  Dred  Scott  decision.  I  think 
it  will  do  good.  It  makes  slavery  so  far  as  the  Supreme  Court 
can,  national — so  now  the  lists  are  open,  and  we  shall  soon  find 
where  the  tougher  lance  shafts  are  grown,  North  or  South.  Don't 
fail  to  read  Justice  Curtis'  opinion  if  you  see  it.  It  does  him 
great  honor  and  will  rank  hereafter  among  the  classics  of  juris- 
prudence. 

To  the  Law  School,  the  year  was  of  further  interest,  on  ac- 
count of  the  famous  Dalton  divorce  case  tried  in  the  Massa- 
chusetts Supreme  Court  before  Judge  Pliny  Merrick,  at  which 
the  law  students  attended  in  great  numbers  to  listen  to  the  argu- 
ments of  Choate  and  Henry  F.  Durant,  against  Richard  H.  Dana. 

At  the  end  of  the  year,  the  Law  School  received  a  visit  from 
Col.  John  C.  Fremont,  the  recent  Republican  candidate  for  Presi- 
dent, described  by  one  of  the  students  in  a  letter  to  the  Boston 
Post,  Dec.  7,  1857,  as  follows : 

At  eleven  o'clock,  A.  M.,  the  eyes  of  an  hundred  and  twenty 
men,  all  members  of  the  Law  School  of  Cambridge,  were  opened 
wide,  either  with  curiosity  or  pride,  (some  said)  to  look  upon  a 
man  whose  near  approach  to  the  White  House  made  for  him 
such  notoriety,  and  not  a  little  frightened  a  large  portion  of  the 
United  States.  He  was  shown  into  the  law  library  and  here  in- 
troduced by  Judge  Parker,  in  something  like  this  way : — 

"Gentlemen  of  the  Law  School,  I  have  the  pleasure  of  intro- 
ducing to  you  Col.  Fremont,  whose  name  is  familiar  to  you  all. 
(Here  there  was  considerable  applause.)  Col.  Fremont  is  on 
a  visit  to  this  part  of  the  country  upon  business  of  a  private  na- 
ture, and  has  thus  honored  us  with  a  visit,  prompted  by  a 
curiosity  which  you've  seen  evinced  by  many  before,  and  there- 
fore does  not  appear  before  you  as  a  public  man,  or  to  address 
you."  (Applause.) 

Judge  Parker  stepped  aside,  and  the  hero  of  the  Rocky  Moun- 


ANTI-SLAVERY  PERIOD.  215 

tains  stood  face  to  face  with  that  august  assembly  the  law  stu- 
dents. He  slightly  inclined  his  head,  which  could  neither  be 
called  a  bow  nor  anything  that  was  not  a  bow ;  it  was  enough, 
however,  to  bring  down  the  house,  which  seemed  to  embarrass 
him  no  little,  for  he  evidently  showed  a  desire  to  speak,  and 
seemed  to  be  aware  that  to  say  something  was  almost  necessary. 
Whether  a  look  from  "Jessie,"  (who  accompanied  him  with  sev- 
eral other  ladies)  or  another  round  of  applause  which  here  fol- 
lowed, made  him  "get  down  to  his  work,"  I  can't  say ;  at  any  rate, 
he  commenced  thus,  as  well  as  I  can  recollect : — 

"It  is  with  great  pleasure  that  I  visit  Cambridge,  whose  his- 
torical recollections  afford  me  even  more  gratification  and  pleas- 
ure than  I  derived  from  looking  at  Bunker  Hill  or  any  other 
places  of  interest  by  which  I  am  now  surrounded" — there  the 
gentlemen  stopped  and  repeated  the  first  part  of  what  he  had 
said,  and  then  suddenly  becoming  aware  of  what  he  had  done, 
stopped  short,  and  looked  down  with  a  very  confused  laugh.  This 
tickled  his  lady  as  much  as  it  surprised  some,  and  made  others 
whisper  behind  their  hats.  A  few  moments  elapsed,  and  perhaps 
another  look  from  an  eye  he  was  accustomed  to,  made  him  think 
it  was  necessary  to  finish  his  half  finished  but  twice  repeated 
sentence,  and  he  resumed — "I  was  about  to  say,  gentlemen,  that 
I  have  experienced  great  pleasure  in  visiting  you  and  associating 
the  historical  recollections  of  Cambridge  with  its  present" — (Great 
applause)  very  much  to  the  relief  of  the  noble  hero,  who  again 
slightly  inclined  his  head  and  stepped  down  among  his  very  en- 
thusiastic admirers,  who  shook  his  hands  and  smiled  their  thanks 
for  the  best  speech  that  Dane  Building  ever  had  made  within  its 
walls.  While  the  applause  from  students  continued,  he  was  seen 
to  speak  apart  with  Professor  Parsons,  and  soon  after,  that  gen- 
tleman arose,  and  the  house  was  stilled  with  the  power  of  that 
great  respect  and  love  which  our  truly  noble  Professor  has  at  all 
times  been  capable  of  commanding.  He  said : 

"Col.  Fremont  has  done  me  the  honor,  gentlemen,  (I  consider 
it  an  honor)  to  request  me  to  account  to  you  for  his  being  stopped 
in  his  remarks  to  you.  We  can  easily  pardon  him  for  this  arrest 
in  what  he  had  to  say  to  you  when  we  consider  the  cause  which 
he  has  been  pleased  to  assign  himself  as  giving  him  pleasure,  and 
honored  us  by  calling  the  historical  and  pleasant  recollections  con- 
nected with  the  history  of  Cambridge ;  and  we  can  the  more 
easily  overlook  this  stoppage  when  ive  all  knozu  that  he  never  has 
yet  stopped  when  he  had  anything  to  do!" 

This  was  spoken  in  that  easy,  dignified,  fluent  and  polite  way 
which  is  peculiar  to  the  learned  gentleman,  and  was  followed  by 
great  applause,  and  the  lower  bow  of  the  great  colonel,  who  this 
time  accompanied  it  with  a  very  sweet  smile,  which  seemed  to 
say  "I  wish  I  could  talk  that  way."  He  was  then  cheered  out  of 
the  room,  and  our  Professor  was  received  by  his  class  at  nl/2 
o'clock  with  peals  of  applause  for  his  gallant  aid  to  the  dis- 


2i6  HARVARD  LAW  SCHOOL. 

tinguished  stranger,  which  no  doubt  will  be  remembered  with  the 
liveliest  emotions  of  gratitude  and  pleasure  by  Col.  Fremont  long 
after  his  attempt  at  power  shall  by  the  world  have  been  for- 
gotten. 

In  1858,  Harvard  students  shared  with  all  the  citizens  of 
Cambridge  in  the  celebration  of  the  abolition  of  tolls  on  West 
Boston  Bridge,  thus  noted  by  Longfellow  in  his  diary : 

Feb.  i,  1858,  Cannon  and  Bells  at  sunrise,  announcing  that 
henceforth  the  Cambridge  toll  bridge  is  free.  At  noon  more 
bells  and  a  procession  of  40  or  50  railroad  cars  with  banners  and 
music  and  a  speech  on  the  bridge  and  surrender  thereof  to  the 
city  of  Cambridge. 

An  entry  in  this  same  diary,  six  months  later,  is  of  interest : 

Aug.  5,  1858.  Standing  in  the  office  I  hear  the  click,  click  of 
the  telegraph  and  presently  the  clerk  says,  "The  Atlantic  Tele- 
graph is  laid!"  Soon  it  buzzes  through  the  corridors,  and  the 
whole  house  is  alive  with  the  news. 

Aug.  6.  Go  to  town  with  the  boys.  Flags  flying  and  bells 
ringing  to  celebrate  the  laying  of  the  telegraph. 

In  the  next  year,  1859,  occurred  the  death  of  Rufus  Choate 
on  July  13.  So  large  a  part  had  this  wonderful  lawyer  and 
orator  played  in  the  lives  of  the  law  students,  so  many  of  his 
cases  had  been  attended  by  them  for  practice  in  cross  examina- 
tion, through  listening  to  his  wonderful  feats,  that  it  was  thought 
fitting  that  an  address  should  be  delivered  in  his  commemoration ; 
accordingly  Professor  Parsons,  on  invitation  of  the  Assembly  of 
the  Law  School,  delivered  an  oration  on  September  29,  1859. 
His  description  of  Choate  was  so  vivid  that  at  the  request  of  the 
Assembly,  the  address  was  published,  and  remains  today  one  of 
the  best  of  all  the  contemporaneous  accounts. 

The  Assembly  listened  this  year  to  two  other  notable  addresses ; 
one  by  William  Emile  Doster,  of  Pennsylvania,  a  member  of  the 
Senior  Class  of  the  Law  School,  delivered  on  March  18,  1859, 
on  The  Conflict  Between  Literature  and  Law(i)  ;  the  other,  at 
the  opening  of  the  Fall  Term  in  September,  1859,  by  Hon. 
Joseph  C.  Jackson  of  Newark,  New  Jersey,  on  The  Relation  of 
the  American  Laivyer  to  the  State, (2)  in  which  he  lamented  the 


(1)  This  address  was  published  at  the  request  of  the  law  students. 

(2)  This  speech  was  published  at  the  request  of  the  law  students. 


ANTI-SLAVERY  PERIOD.  217 

apathy  of  merchant  and  lawyer  towards  public  service,  the  brib- 
ery in  every  grade  of  public  office,  and  the  enormous  abuse  of 
wealth  and  patronage.  A  hint  at  the  troublous  political  times  was 
given  in  his  opening: 

Tonight  we  meet  to  acquaint  ourselves  with  one  another,  that 
we  may  be  at  peace,  may  recognize  each  other  as  followers  of  the 
.same  pursuit,  encountering  the  same  difficulties,  animated  by  kin- 
dred aspirations. 

The  changes  in  the  Law  Faculty  and  the  approach  of  the  panic 
of  1857(1)  had  a  marked  effect  upon  the  attendance  at  the 
School,  which  dropped  from  148  at  the  beginning  of  1853-54, 
and  143  in  1854-55,  to  in  in  1855-56  and  109  in  1856-57,  while 
the  average  number  in  attendance  during  these  years  dropped 
from  148  to  115.  Nevertheless,  the  Report,  Jan.  19,  1856,  of  the 
Law  School  Visiting  Committee,  of  which  Charles  Theodore 
Russell  was  Chairman,  spoke  of  the  "continuance  of  the  same 
general  prosperity  of  the  School",  and  of  its  widely  diffused  in- 
fluences : 

It  cannot  but  be  that  this  early  intermingling  of  those  who 
are  hereafter  to  fill  important  and  leading  positions  on  the  bench 
and  at  the  bar  of  the  several  States,  will  exercise  a  beneficent  in- 
fluence in  the  harmonious  working  and  perpetuity  of  the  institu- 
tions we  all  love  and  cherish. 

President  Walker,  in  his  Report  for  1855-56  noted  that  the 
School  was  "resorted  to  by  students  from  every  section  and 
from  almost  every  college  in  the  United  States." 

The  attendance  in  1857-58  was  126,  in  1858-59,  in,  but  re- 

(i)  George  Ticknor  wrote  to  Sir  Edmund  Head,  Nov.  18,  1857: 
"I  need  not  tell  you  what  a  hurricane  we  have  had  in  our  own  commer- 
cial and  monetary  affairs.  Even  London  and  Paris  have  not  been  uncon- 
scious of  it.  But  here  it  has  been  tremendous.  A  great  deal  has,  no  doubt 
been  owing  to  a  mad  panic.  But  there  have  been  deep  causes  at  work  for 
years  to  produce  it.  The  people  of  this  country  have  been  spendthrifts  to 
a  degree  that,  I  think,  no  people  in  all  its  classes  ever  were  before ;  and 
as  for  the  great  merchants  and  manufacturers,  the  bank  directors  and  rail- 
road managers,  they  have  been  gamblers.  .  .  .  We  shall  of  course  get  over  it, 
and,  I  suppose,  take  nothing  by  our  experience.  The  country  was  never 
more  really  prosperous — never  richer  in  all  that  goes  to  makes  up  national 
wealth  than  it  is  now — and  as  soon  as  this  bourrasque  is  over,  we  shall  go 
to  spending,  speculating  and  gambling,  just  as  if  nothing  had  ever  hap- 
pened. One  of  the  most  curious  things  about  it — is  the  way  in  which  peo- 
ple accept  it  and  submit  to  it,  as  if  it  were  the  work  of  an  irresistible  fate. 
Debtors  claim,  as  if  it  were  a  right,  an  extension  of  time  for  paying  their 
notes,  and  creditors  everywhere  grant  it  as  a  matter  of  course. 
See  Life  and  Letters  of  George  Ticknor,  Vol.  II. 


218  HARVARD  LAW  SCHOOL. 

vived  again  in  1859-60  to  166,  the  latter  being  the  largest  num- 
ber ever  in  attendance  at  the  beginning  of  a  College  year  since 
1817.  The  average  attendance  also  increased  in  these  years  from 
143  to  161,  and  the  Law  School  Visiting  Committee,  January  26, 
1859,  reported  the  School  as  "highly  prosperous". 

A  warning  note,  however,  as  to  the  approaching  Civil  War  was 
sounded,  in  President  Felton's  35th  Annual  Report  (1859-60)  : 

Law  School  students  have  pursued  their  studies  with  ex- 
emplary diligence  and  while  the  discords  of  the  country  have 
been  increasing,  they  have  lived  in  uninterrupted  harmony,  drawn 
from  29  States. 

The  course  of  instruction  was  as  follows  in  1855-56:  Parker 
gave  lectures  upon  Bailments,  Constitutional  Law  and  the  Juris- 
prudence of  the  United  States,  Equity  Jurisprudence,  Pleading, 
Evidence,  and  Practice. 

Parsons  gave  lectures  upon  Blackstone,  Insurance,  Bills  and 
Notes,  and  Partnership. 

Washburn  gave  lectures  upon  Domestic  Relations,  Conflict  of 
Laws,  Sales,  and  Real  Property. 

In  1856-57  Parker  gave  Agency,  Constitutional  Law,  Pleading 
and  Practice,  and  Equity  Jurisprudence. 

Parsons  gave  Blackstone,  Insurance,  Evidence,  and  Contracts. 

Washburn  gave  Domestic  Relations,  Criminal  Law,  Bankruptcy 
and  Insolvency,  and  Real  Property. 

And  this  rotation  of  courses  every  two  years  was  substantially 
followed  up  to  1870.  Ten  lectures  were  given  each  week,  and 
"in  the  course  of  such  lectures  such  examinations  are  made  by 
inquiry  of  the  students  as  to  points  and  cases  presented  to  them 
in  relation  to  the  subject  matter  of  the  lecture  as  is  thought  best. 
We  repeat  that  larger  experience  has  more  firmly  convinced  the 
Faculty  that  no  other  mode  of  examination  would  be  so  well 
adopted  to  the  wants  of  the  School."(i) 

Recitations  by  the  students  had  now  been  entirely  given  up, 
(2).  The  number  of  Moot  Courts  was  now  reduced  to  one  a 
week;  and  as  the  Professors  reported(3)  : 


(1)  See  President's  Annual  Report  (1854-55). 

(2)  See  Report  of  Law  School  Visiting  Committee,  Jan.  26,  1859. 

(3)  Professor   Joel  Parker  in  his  Law  School  of  Harvard  College  ( 1871 ) , 
said :  "Being  deeply  impressed  with  the  value  of  Moot  Courts  as  a  means 
of  instruction,  I  proposed,  at  the  first  term  of  the  new  administration  to 


ANTI-SLAVERY  PERIOD.  219 

In  1848,  we  ventured  upon  the  experiment  of  holding  two  Moot 
Courts  in  a  week  and  for  some  years  it  was  very  successful.  For 
a  few  terms  past  perhaps  partly  from  the  introduction  of  prizes 
for  disputation,  the  interest  in  the  Moot  Courts  has  decreased 
and  during  the  last  term  attendance  upon  this  part  of  the  exer- 
cises was  very  small. 

The  need  of  a  new  building  was  now  very  greatly  felt,  and 
in  1856  Professor  Parsons  wrote  to  President  Walker(i)  : 

The  Law  School  building  is  anything  but  fireproof  and  I  sug- 
gest the  query  whether  it  would  not  be  well  to  have  a  small  safe 
there. 

Formerly,  the  Professors  did  most  of  their  work  and  kept  their 
papers  at  home.  We  work  more  at  the  School.  I  am  there  the 
whole  of  every  forenoon,  and  much  of  the  afternoon.  My  notes 
for  all  my  lectures  are  kept  in  my  room.  Judge  Parker  is  less 
in  his  room  than  I  am,  having  some  occupation  which  draws  him 
elsewhere,  but  he  is  there  much  of  the  time  and  keeps  valuable 
papers  there.  Professor  Washburn  has  begun  to  keep  in  his 
office,  much  as  I  do. 

At  the  close  of  the  year  1859,  the  Law  School  received,  for  the 
first  time  in  its  history,  a  legal  name,  and  was  thenceforth  officially 
recognized  by  its  present  title,  under  the  following  vote  of  the 
Corporation,  October  29,  1859(2)  : 


double  the  number  so  as  to  hold  two  each  week,  which  was  assented  to, 
and  that  course  adopted  as  a  Faculty  regulation.  The  plan  worked  well  for 
a  time — the  students  were  eager  to  take  their  turns  as  counsel  and  pre- 
pared their  cases  with  great  zeal.  But  in  the  course  of  a  few  years,  a 
change  came  over  the  spirit  of  the  dreams  of  their  successors,  the  interest 
flagged,  and  then  came  a  term  at  which  it  was  difficult  to  find  students  who 
were  entitled  to  act  as  counsel  and  who  were  willing  to  be  retained,  and  I 
yielded  very  reluctantly  to  a  proposition  to  change  the  rule.  The  School 
changed  afterwards,  but  I  could  not  procure  its  restoration." 

(1)  Harv.   Coll.  Papers,  2nd   Series,  Vol.  XXIII — Letter  of   Parsons, 
Oct.  26,  1856. 

(2)  See  letter  of  the  Law  Faculty  to  the  Corporation,  June  25,  1859 — 
Harvard  Coll.  Papers,  2nd  Series,  Vol.  XXVI. 

"The  Professors  in  the  Law  School  ask  leave  to  call  the  attention  of  the 
Corporation  to  a  usage  which  seems  to  be  increasing  by  which  the  school 
is  designated  as  the  Dane  Law  School.  So  far  as  they  are  aware,  Mr. 
Dane  had  no  agency  in  founding  the  School.  His  name  is  affixed  to  the 
Professorship  which  he  partially  endowed  and  to  the  building  occupied  by 
the  school  in  the  erection  of  which  he  rendered  some  aid.  This  seems  to 
be  a  sufficient  acknowledgment  for  his  donations. 

They  therefore  ask  the  Corporation  to  affix  a  name  to  the  School  by 
which  it  shall  hereafter  be  known  by  authority,  and  they  suggest  for  con- 
sideration and  selection  the  names  of  The  Harvard  Law  School,  the  Law 
School  of  Harvard  College,  and  the  Law  School  of  the  University  at  Cam- 
bridge, which  last  is  the  designation  in  its  catalogues  for  the  last  12  years." 


220  HARVARD  LAW  SCHOOL. 

The  Memorial  from  the  Professors  of  the  Law  School  request- 
ing "the  Corporation  to  affix  a  name  to  the  School  by  which 
it  shall  hereafter  be  known" — was  again  taken  up.  The  Presi- 
dent submitted  a  Report  giving  the  facts  in  the  case  from  the 
Records  of  the  College,  from  which  it  would  appear  that  no 
legal  name  or  designation  has  yet  been  given  to  the  School ;  and 
the  same  was  ordered  to  be  placed  on  file. 

Whereupon  it  was  Voted  that  the  Law  School  shall  bear  the 
name  of  "The  Law  School  of  Harvard  College"  until  otherwise 
ordered  by  the  proper  authorities. 

And  a  year  later,  the  School  was  still  further  recognized  as  a 
separate  department  by  vote  of  the  Corporation,  July  28,  1860 : 

Ordered  that  the  Law  Faculty  have  the  care  and  charge  of 
Dane  Hall  with  the  Library  and  its  appurtenances ;  that  they 
may  from  time  to  time  appoint  and  remove  a  janitor  and  assist- 
ant janitor  and  may  make  such  rules,  regulations  and  orders  for 
the  protection  and  preservation  of  the  building  and  property  as 
shall  appear  to  be  expedient  subject  to  the  approval  of  this 
Board. 

THE  BRATTLE   HOUSE  EXPERIMENT. 

During  the  years  1857-1860  the  Law  School  tried  an  experi- 
ment which  proved  to  be  most  disastrous  to  its  financial  condi- 
tion, and  which  undoubtedly  retarded  its  development  and  in- 
fluence for  the  ensuing  fifteen  years. 

In  January  and  in  November,  1856,  the  Law  School  Visiting 
Committee  had  been  much  impressed  with  the  expenses  attendant 
on  a  residence  in  Cambridge,  and  queried  whether  these  could 
not  be  lessened  so  as  not  to  debar  students  with  limited  means 
"from  the  wholesome  influences  and  superior  instruction  here 
furnished."  The  College  Commons  had  at  this  time  been  abol- 
ished, and  students  were  obliged  to  seek  board  in  public  or 
private  boarding  houses.  "Rents  are  high  and  every  dozen  of 
students  has  to  maintain  a  family.  This  has  continued  so  long 
and  is  so  notorious  that  Cambridge  is  practically  a  place  for 
the  rich  and  not  for  the  poor." — And  the  Committee  suggested 
that  the  Corporation  afford  a  building  or  the  basement  of  Uni- 
versity Hall  where  cheap  rooms  for  Club  boarding  places,  or 
cheap  meals  might  be  obtained. 

If  the  Corporation  can  devise  means  to  lessen  these  expenses 
or  to  assist  students  in  their  endeavor  to  live  economically,  the 


ANTI-SLAVERY  PERIOD.  221 

number  of  students  and  the  utility  of  the  whole  College  in  all  its 
departments  would,  we  are  very  sure,  be  very  greatly  in- 
creased, (i) 

The  Law  Professors  were  actively  interested  in  this  suggestion, 
and  Professor  Parsons  conceived  the  idea  that  a  building  located 
on  Brattle  Square,  then  used  for  a  hotel  and  called  the  Brattle 
House,  should  be  purchased  and  used  for  a  lodging  and  boarding 
house  for  students  in  the  Graduate  Schools.  With  his  character- 
istic impulsive  zeal,  he  urged  this  purchase  upon  the  Corporation, 
who  were  rather  disinclined  to  adopt  the  plan.  It  appeared  that 
the  house  and  land  had  cost  its  owners  in  1850  about  $47,500, 
and  that  it  could  probably  be  purchased  for  slightly  over  $20,000. 
Parsons  evolved  an  elaborate  scheme  (with  a  detailed  estimate 
of  expense)  for  the  transformation  of  this  hotel  for  College 
purposes. (2)  He  planned  for  67  bedrooms,  renting  for  $3,320 
per  year ;  meals,  he  figured,  could  be  supplied  to  the  poor  student, 
at  27  cents  a  day,  or  $1.89  a  week,  and  that  50  men  could  be 
supplied  with  food  and  lodging  for  at  least  $2.50  a  week.  "Of 
this  I  have  no  doubt  whatever,  nor  of  the  rapid  and  important 
influence  of  it  on  the  School."  At  the  same  time,  he  saw  the 
difficulties  in  the  project,  and  was  disinclined  to  have  the  Law 
School  undertake  the  burden.  The  College  Treasurer,  William 
T.  Andrews,  however,  was  deeply  impressed  with  its  possible 
advantages,  and  urged  Parsons  to  continue  his  efforts,  in  which 
advice  President  Walker  concurred.  The  Corporation,  however, 
was  opposed,  being  decidedly  sceptical  of  success.  Finally  Par- 
sons' enthusiasm  and  optimistic  figures  had  their  effect;  and  on 


(1)  March  n,  1857,  the  Overseers  appointed  E.  Rockwood  Hoar,  J.  M. 
Churchill  and  L.  N.  Thayer,  a  Committee,  "to  consider  what  means  if  any 
may  be  adopted  to  reduce  the  expenses  incident  to  a  residence  at  Cam- 
bridge.    .     .     ." 

This  Committee  presented  an  elaborate  report  Jan.  28,  1858,  full  of  in- 
terest. They  stated  that  the  average  expense  of  board  and  room  rent  was 
greater  at  Harvard  than  at  other  colleges,  and  "somewhat  more  than  twice 
as  great  as  it  was  25  years  ago.  The  general  price  of  food  and  houses  in 
the  neighborhood  of  Boston  has  greatly  advanced.  There  has  been  a  gen- 
eral change  of  habits  in  the  community.  The  style  of  living  has  grown 
less  simple  and  more  luxurious  and  expensive,  in  furniture,  dress  and 
food.  The  supply  of  college  rooms  is  entirely  inadequate  for  the  400 
students.  30  years  ago  it  was  not  sufficient  for  the  200  then  in  College. 
The  great  want  of  the  College  seems  to  be  buildings  for  dormitories,  with 
a  place  in  the  basement  for  board." 

(2)  See  estimate  of  Parsons  in  a  Memorandum  by  A.  Willard,  March 
20,  1857;  letter  of  Parsons  to  Walker,  June  i,  1857,  Harv.  Coll.  Papers, 
2nd  Series,  Vol.  XXIV. 


222  HARVARD  LAW  SCHOOL. 

April  18,  1857,  the  Corporation  authorized  the  purchase  of  the 
Brattle  House,  "as  an  investment  of  the  funds  of  the  Law 
School" — first,  however,  taking  the  precaution  to  commit  the 
whole  Law  Faculty  in  writing  to  the  recommendation  and  sup- 
port of  the  project. (i) 

The  arrangement  was  embodied  in  a  letter  to  the  President  and 
Treasurer,  April  21,  1857,  under  which  it  appeared  that  the 
funds  of  the  School  were  to  be  used  in  the  purchase  but  the  net 
receipts  of  rentals  were  to  be  credited  as  income  from  the  amount 
paid;  and  the  Law  Faculty  was  to  take  upon  itself  the  whole 
charge  and  management  of  Brattle  House.  The  right  to  have  its 
students  room  in  Graduate  Hall  or  Divinity  Hall,  as  had  been 
the  custom,  was  to  be  relinquished  by  the  Law  School. 

The  Professors  embarked  in  this  new  enterprise  with  enthusi- 
asm, which  was  quickly  dulled  by  the  discovery  that  far  more 
costly  repairs  and  alterations  were  needed  than  had  been  an- 
ticipated. Within  three  years,  upwards  of  $35,000  of  the  Law 
School  funds  had  been  sunk  in  the  venture.  Troubles  ensued 
with  the  caterer.  It  was  found  that  fewer  students  than  had 
been  hoped  could  be  induced  to  occupy  the  cheap  rooms.  The 
Professors  had  not  the  time  to  give  attention  to  the  numerous 


(i)     "April  18,  1857.    To  W.  T.  Andrews,  Treas. 

The  undersigned  Professors  of  the  Law  School  beg  leave  respectfully  to 
say  (so  far  as  they  may  without  the  slightest  interference  with  the  exclu- 
sive duties  of  the  Treasurer)  that  they  have  carefully  inquired  into  and 
considered  the  facts  in  relation  to  the  Brattle  House,  and  are  of  the  opin- 
ion that  a  purchase  thereof  at  the  present  price  by  the  friends  of  the  Law- 
School,  with  such  aid  as  may  be  obtained  from  the  Scientific  School,  would 
be  decidedly  advantageous  and  useful  to  the  Law  School ;  and  therefore, 
but  always  with  the  reservation  above  made,  express  their  desire  that  this 
purchase  may  be  made. 

Joel    Parker 
Theophilus   Parsons 
Emory    Washburn." 

Professor  Parker  in  his  The  Law  School  of  Harvard  College  (1871) 
said: 

"The  scheme  to  purchase  the  Brattle  House  did  not  originate  with  me, 
nor  did  I  make  any  calculations,  by  which  it  was  supposed  to  be  shown 
that  it  would  not  entail  any  loss  upon  the  School,  but  would  furnish  an 
income  nor  was  I  present  when  it  was  finally  determined  to  make  the 
purchase.  But  the  attempt  to  lessen  the  expenses  had  nry  hearty  support — 
the  purchase,  my  approval,  on  the  representations  which  were  made ;  my 
aid,  such  as  it  might  be,  was  given  to  render  it  a  success,  and  I  do  not 
shrink  from  my  share  of  responsibility  for  the  measure  and  its  effects.  The 
arrangement  failed  partly  from  the  fact  that  no  person  eminently  qualified 
could  be  found  to  manage  the  concern,  and  partly  because  the  partial  meas- 
ure of  success  which  attended  it,  by  reducing  the  rates  charged  elsewhere, 
tended  of  itself,  to  pecuniary  loss." 


ANTI-SLAVERY   PERIOD.  223 

details,  nor  the  business  ability  to  conduct  the  establishment 
economically. 

Finally,  on  April  27,  1860,  the  Law  Faculty  wrote  to  the  Cor- 
poration^) saying  that  "the  experiment  has  been  attended  with 
a  measure  of  success,  the  other  departments  of  the  College  shar- 
ing in  the  benefits  of  it.  But  experience  has  rendered  it  quite 
evident  that  such  an  establishment  cannot  be  managed  by  the  Law 
Faculty  with  the  same  economy  that  it  might  be  if  it  were  more 
directly  under  the  supervision  and  control  of  the  Treasurer  and 
other  officers  who  have  charge  of  the  prudential  concerns  of  the 
College" ;  and  they  asked  that  the  College  should  purchase  the 
building  out  of  the  general  funds. 

The  Corporation  declined  to  accede  to  this,  in  a  vote  of  July 
28,  1860,  both  the  new  President  Cornelius  C.  Felton,  (who  had 
been  chosen  Jan.  20,  1860)  and  the  new  Treasurer  Amos  A. 
Lawrence,  (appointed  in  1857)  being  opposed. 

Another  attempt  was  made  by  Parsons  to  persuade  the  Cor- 
poration to  purchase,  in  a  letter  of  September  29,  1860,  in  which 
he  said : 

With  all  the  losses  and  hindrances  arising  from  the  inability  of 
the  Law  Faculty  to  attend  to  such  a  matter  in  all  its  details  in  the 
right  way,  it  has  come  near  paying  fair  interest  to  the  Law 
School  on  its  cost,  and  has  shown,  I  think,  that  with  proper  man- 
agement it  might  do  this.  Of  its  indirect  benefit  to  the  College 
and  all  its  Schools  in  Cambridge,  far  more  might  be  said  than  I 
care  to  say  now.  I  will  suggest  this,  however. 

Nobody  in  Cambridge  doubts  that  the  Brattle  House  has 
brought  down,  or  has  kept  down,  the  price  of  rooms  at  least  10 
cents  a  week  for  each  student  residing  here ;  and  as  much  more 
for  the  board  of  each  student.  I  have  never  heard  anyone  put  it 
so  low  as  this.  That  would  be  twenty  cents  a  week  for  each 
student — call  it  half  this — for  600  students — and  this  indirect 
benefit  is  of  itself  full  compensation  for  all  the  cost  of  the  house 
and  furniture. 

There  are  many  such  considerations  which  must  occur  to  you 
or  to  Mr.  Lawrence,  and  I  will  not  dwell  on  them ;  as,  the  ad- 
vantage of  your  House  under  College  Control  for  the  reception 
of  strangers  who  visit  Cambridge  in  reference  to  the  College,  the 
certainty  of  what  the  House  will  become  if  it  passes  out  of  Col- 
lege control. 

The  matter  was  finally  settled  by  a  vote  of  the  Corporation, 
September  29,  1860,  purchasing  the  property  for  $15,000,  and 


(i)     See  //art-.  Coll.  Papers,  2nd  Series,  Vol.  XXVII. 


224  HARVARD  LAW  SCHOOL. 

on  March  16,   1861,  the  Law  Faculty  addressed  the  following 
letter  to  the  Corporation,  thus  closing  the  incident : 

The  undersigned  Professors  in  the  Law  School,  being  fully 
convinced  that  the  Brattle  House  if  retained  should  be  under 
the  superintendence  of  the  Treasurer,  hereby  in  behalf  of  this 
department  accept  the  offer  of  the  Corporation  to  take  it  at  the 
sum  of  $15,000.  (i) 

The  loss  to  the  Law  School  on  this  transaction  was  about 
$17,000,  changing  its  account  from  a  balance  of  $16,462.43  in 
1856  to  a  deficit  in  1861  of  $2,531.94(1). 

(1)  It  would  seem  that  considerable  friction  had  arisen  over  this  sale. 
See  the  following  extracts  from  letters  from  Amos  A.  Lawrence,  Treasur- 
er, to  President  Felton,  March  16,  and  March  20,  1861,  Harv.  Coll.  Pa- 
pers, 2nd  Series,  Vol.  XXVIII. 

"If  the  gentlemen  of  the  Law  School  should  refuse  to  expel  the  tenant 
Kent,  it  may  be  necessary  for  the  Corporation  to  take  charge  of  the  Brat- 
tle House.  But  it  is  desirable  that  they  should  keep  the  charge  of  it  and 
make  the  sale  of  it  when  it  is  made,  and  so  keep  the  responsibility  of  the 
failure  of  the  scheme  upon  themselves.  To  induce  them  to  do  as  we  wish, 
it  may  be  necessary  to  inform  them  in  detail  of  what  has  been  done  there, 
and  as  to  the  character  of  these  people.  If  they  insist  on  keeping  the 
house,  I  shall  deduct  from  the  Law  School  share  of  the  Bussey  Fund  all 
that  is  necessary,  to  prevent  the  increase  of  indebtedness  from  the  Law 
School  to  the  College.  This' will  hasten  their  decision  to  sell  the  Brattle 
House,  if  they  are  still  doubting  as  to  that.  .  .  .  The  arrangement  proposed 
is  the  best  which  the  gentlemen  of  the  Law  School  can  make,  speaking 
financially.  Whether  it  is  expedient  for  the  College  to  retain  the  owner- 
ship remains  to  be  seen.  Probably  not." 

(2)  See  detailed  figures,  Chapter  XL,  infra. 


CHAPTER  XXXIV. 
THE  FEDERAL  BAR  AND  LAW  1830-1860. 

The  Federal  Bar  in  the  thirty  years  1830-1860,  showed  a 
marked  change  from  that  of  the  first  thirty  years  of  the  iQth 
Century.(i)  Daniel  Webster  continued,  until  his  death  in  1853, 
the  undisputed  head;  but  the  lawyers  of  Maryland,  Pennsyl- 
vania and  Virginia  no  longer  monopolized  the  arguments.  Massa- 
chusetts was  brilliantly  represented  by  noted  lawyers  like  Franklin 
Dexter,  Charles  G.  Loring,  Sidney  Bartlett,  Caleb  Cushing(2), 
John  H.  Clifford, (3)  B.  F.  Hallett,(4)  John  Davis, (5 )  James  T. 
Austin,  (6)  Richard  Fletcher, (7)  and  Willard  Phillips.  In  1840, 
Theophilus  Parsons,  Jr.,  argued  Peters  v.  Warren  Ins.  Co.  (14 
Peters  99)  against  Webster.  In  1842,  Richard  H.  Dana.  Jr.  (8) 
argued  the  famous  case  of  Swift  v.  Tyson  (16  Peters  i)  ;  and  in 
the  same  year  Rufus  Choate(9)  made  his  first  appearance  in 


(1)  Between   1830  and  1860  only  nine  new  States  were  admitted  into 
the  Union  in  addition  to  the  23  composing  the  United  States  in  1830. 

Arkansas  was  admitted  in  1836.  Its  first  law  reports  were  Albert  Pike's 
in  1840. 

Michigan  was  admitted  in  1837.  Its  first  law  reports  were  Douglas'  in 
1852. 

Florida  was  admitted  in  1845.     Its  first  law  reports  were  in  1847. 

Texas  was  admitted  in  1845.    Its  first  law  reports  were  in  1848. 

Iowa  was  admitted  in  1846.  Its  first  law  reports  were  in  1846  covering 
territorial  court  decisions,  in  1849  covering  State  Court  decisions. 

Wisconsin  was  admitted  in  1848.  Its  first  law  reports  were  Chandler's 
in  1850. 

California  was  admitted  in  1850.     Its  first  law  reports  were  in  1851. 

Minnesota  was  admitted  in  1858.    Its  first  law  reports  were  in  1858. 

Oregon  was  admitted  in  1859.     Its  first  law  reports  were  in  1862. 

(2)  Born  in  1800,  a  Harvard  graduate  of  1817,  Judge  of  Mass.  Supreme 
Court  1852,  Atty.  Gen.  of  the  United  States  1853-57. 

(3)  Born  in  1809,  Brown  1827,  Atty.  Gen.  of  Mass.  1849-53,  Governor 
1853,  Atty.  Gen.  1854-58. 

(4)  Born  in  1797,  Brown  1810,  U.  S.  Dist.  Atty.  1853. 

(5)  Born  in  1787,  Yale  1812;  Governor  1835-1841;  U.  S.  Senator  1845- 
53- 

(6)  Born  in  1789,  Harvard  1802,  son-in-law  of  Elbridge  Gerry,  Atty. 
Gen.  of  Mass.  1832-43. 

(7)  Born  in  1788,  Dartmouth  1806,  studied  with  Daniel  Webster,  Judge 
Massachusetts  Supreme  Court  1848. 

(8)  Born  in  1815,  Harv.  1837,  U.  S.  Dist.  Atty.  1861-66. 

(9)  Born  in  1799,  Dartmouth  1819,  U.  S.  Senator  1841-45,  Mass.  Atty. 
Gen.  1853-54. 

15 


226  HARVARD  LAW  SCHOOL. 

Prouty  v.  Ruggles.  In  1849,  Benjamin  R.  Curtis (i)  argued 
the  noted  case  of  Peck  v.  Jenness  (7  Howard  612). 

New  York  sent  a  distinguished  list  of  counsel,  Ogden  Hoff- 
man, John  C.  Spencer,  (2)  Benjamin  F.  Butler,  (3)  Charles 
O'Connor,  (4)  Samuel  Beardsley,(5)  George  Wood,  Daniel 
Lord, (6)  William  H.  Seward,(7)  and  Edward  M.  Dickerman. 

The  District  of  Columbia  lawyers  Key,  Coxe,  Mason,  Simns, 
and  the  veteran  Thomas  Swann  (until  his  death  in  1840)  argued 
a  vast  number  of  cases. 

From  Illinois,  Abraham  Lincoln  (8)  appeared,  in  1850,  in 
Brabster  v.  Gibson  (9  Howard  261). 

William  Wirt  of  Maryland  continued  in  constant  and  vigorous 
practice  up  to  his  death  in  1834.  Among  his  prominent  confreres 
were  Roger  B.  Taney  and  John  Nelson;  and  in  1839,  first 
appeared  the  man  who  was  to  be  for  many  years  the  chief  com- 
petitor of  Webster  at  the  Bar,  Reverdy  Johnson.  (9) 

From  Kentucky  came  Clay,  Bibb,  Wickliffe,  John  J.  Critten- 
den(io);  from  Georgia,  John  McPherson  Berrien  and  William 
H.  Crawford;  from  Mississippi,  Robert  J.  Walker (n)  and  Ser- 
geant S.  Prentiss(i2). 

From  Missouri  came  Thomas  H.  Benton,  who  argued  the  great 
case  of  Craig  v.  Missouri  (4  Peters  410)  in  1830. 

From  Ohio  there  were  Henry  Stanberry(i3)  and  Salmon  P. 
Chase,  (14)  who  first  appeared  in  1836. 


(1)  Born  in   1809,   Harv.    1829,  Judge   United   States   Supreme   Court 
1851. 

(2)  Born  in  1786,  son  of  Chief  Justice  Ambrose  Spencer,  Union  Col- 
lege 1803. 

(3)  Born  in  1785,  U.  S.  Atty.  Gen.  1833-38. 

(4)  Born  in  1804. 

(5)  Born  in  1790,  Judge  N.  Y.  Supreme  Court  1844,  Chief  Justice  1847 

(6)  Born  in  1795,  Yale  1814,  studied  at  the  Litchfield  Law  School. 

(7)  Born   in    1801    Union    Coll.    1816-19,    studied   with    John    Anthon, 
John  Duer  and  Ogden  Hoffman,  Governor  1838-42,  U.  S.  Senator  1849. 

(8)  Born  in  1809. 

(9)  Born  in  1796,  St.  Johns  Coll.,  U.  S.  Atty.  Gen.  1849-50. 

An  interesting  article  on  the  Supreme  Court  in  1853-4  in  American  Law 
Register,  Vol.  IV  (1853-54),  says  that  "the  largest  practice  before  the 
Court  is  that  of  Reverdy  Johnson." 

(10)  Born  in   1787,  William  and  Mary  Coll.   1807,   1809  Atty.  Gen.  of 
Terr,  of  Illinois,  1817,  1829-35  U.  S.  Senator  from  Kentucky,  1827  U.  S. 
Dist.  Atty. 

(n)  Born  in  1801,  U.  of  P.  1819,  U.  S.  Senator  1836-45,  Sec.  of  Treas- 
ury 1845-49. 

(12)  Born  in  1808,  Bowdoin  1826. 

(13)  Born  in  1803  Washington  Coll.  1819,  Atty.  Gen.  of  Ohio  1846,  U. 
S.  Atty.  Gen.  1866-68. 

(14)  Born  in  1808,  Dartmouth  1826,  studied  with  Wirt  1827. 


FEDERAL  BAR.  227 

From  Pennsylvania,  the  veteran  John  Sergeant  headed  the 
list  of  eminent  lawyers,  which  also  included  Horace  Binney, 
Charles  J.  Ingersoll,  Joseph  R.  Ingersoll,  William  M.  Meredith, 
James  Campbell, (i)  Edwin  M.  Stanton,(2)  Henry  D  Gilpin,(3) 
George  M.  Dallas (4)  and  Job  R.  Tyson  (5). 

The  death  of  Webster  in  1853,  of  Clay  in  1852  and  of  Calhoun 
in  1850,  removed  three  of  the  greatest  legal  lights  of  this 
period.  (6)  « 

The  Attorney  Generals  were  Roger  B.  Taney  of  Maryland 
(1831-1833)  Benjamin  F.  Butler  of  New  York  (1833-1838), 
Felix  Grundy  of  Tennessee  (1838-1840),  Henry  D.  Gilpin  of 
Pennsylvania  (1840-1841),  John  J.  Crittenden  of  Kentucky 
(1841),  Hugh  S.  Legare  of  South  Carolina  (1841-1843)  John 
Nelson  of  Maryland  (1845),  Nathan  Clifford  of  Maine  (1846- 
1848)  Reverdy  Johnson  of  Maryland  (1849)  Jonn  J-  Crittenden 
of  Kentucky  (1850),  and  Caleb  Gushing  of  Massachusetts  (1850- 
1857),  and  Jeremiah  S.  Black  of  Pennsylvania  (1857-1860). 

FEDERAL    LAW. 

The  changes  on  the  United  States  Supreme  Bench  during  these 
years  were  many. (i)  Senator  Hoar  in  his  autobiography  says 
that,  when  his  brother  E.  Rockwood  Hoar  visited  Washington  in 
1836,  "Webster  received  him  with  great  kindness,  showed  him 
about  the  capital  and  took  his  to  the  Supreme  Court  where  he 
argued  a  case.  Mr.  Webster  began  by  alluding  very  impressively 
to  the  great  change  which  had  taken  place  in  that  Tribunal  since 
he  first  appeared  as  counsel  before  them.  He  said :  'No  one  of 
the  judges  who  was  here  then,  remains.  It  has  been  my  duty 
to  pass  upon  the  question  of  the  confirmation  of  every  member 
of  the  Bench ;  and  I  may  say  that  I  treated  your  honors  with  en- 
tire impartiality,  for  I  voted  against  every  one  of  you.'  " 

(1)  Born  in  1812,  Atty.  Gen.  of  Penn.   1852. 

(2)  Born  in  1814,  Kenyon  Coll.   1831-33. 

(3)  Born  in  1801,  U.  of  P.  1819,  studied  with  Joseph  R.  Ingersoll,  U. 
S.  Dist.  Atty.  1832,  U.  S.  Atty.  Gen.  1840-41. 

(4)  Born  in  1803. 

(5)  Born  in  1792,  Princeton  1810,  U.  S.  Dist.  Atty.  1829,  U.  S.  Senator 
1831,  Atty.  Gen.  of  Penn.  1833. 

(6)  In   1834,  William  Johnson  of  South  Carolina  died  and  James  M. 
Wayne  of  Georgia  took  his  place,  in  1835.     Philip  P.  Barbour  of  Virginia 
was  appointed,  in  1836,  in  place  of  Gabriel  Duvall  (resigned).    Taney  suc- 
ceeded Marshall  as  Chief  Justice,  March  15,  1836.    In  1837,  the  number  of 
judges  was  increased  from  seven  to  nine;  and  John  Catron  of  Tennessee 
and  John  McKinley  of  Alabama  were  appointed. 


228  HARVARD  LAW  SCHOOL. 

When  Chief  Justice  Marshall  died,  in  1835,  most  of  the  funda- 
mental doctrines  of  American  Constitutional  Law  and  of  Interna- 
tional Law  as  applied  by  the  courts  of  this  country  had  been 
firmly  established.  Of  Marshall's  creative  part,  mention  has  al- 
ready been  made.  How  great  was  his  physical  share  of  the  work 
may  be  judged  from  the  following  figures.  Between  1790  and 
1801,  there  had  been  only  6  constitutional  questions  involved  in 
cases  before  the  Supreme  Court.  Between  1801  and  1835  there 
was  62  decisions  involving  such  questions,  in  36  of  which  Marshall 
wrote  the  opinion.  Of  a  total  of  1,215  cases  during  that  period, 
in  94,  no  opinions  were  filed;  in  15,  the  decision  was  "by  the 
court";  and  in  the  remaining  1,106  cases,  Marshall  delivered  the 
opinion  in  5i9.(i) 

In  the  same  period,  there  were  195  cases  involving  questions 
of  International  Law,  or  in  some  way  affecting  international  rela- 
tions. 

In  80  of  these,  the  opinion  was  delivered  by  Marshall ;  in  37, 
by  Story ;  28,  by  Johnson ;  19,  by  Washington  ;  14,  by  Livingston  ; 
5,  by  Thompson ;  and  I  each  by  Baldwin,  Gushing  and  Duvall ;  in 
8,  "by  the  court."  (2) 

After  the  accession  of  Chief  Justice  Taney  to  the  Bench,  in 
1836,  the  decisions  of  the  Supreme  Sourt  showed  a  decided  reac- 
tion from  the  centralizing  views  of  Marshall.  This  was  first  seen 
in  three  cases  in  1837.  In  New  York  v.  Miln  (n  Peters  103), 
argued  by  D.  B.  Ogden  of  New  York  against  Walter  Jones,  in- 
volving the  New  York  statute  requiring  certain  information  as  to 
all  passengers  arriving  in  the  Port  of  New  York,  the  statute  was 
held  constitutional  as  not  being  a  regulation  of  interstate  com- 
merce. In  Briscoe  v.  Bank  of  Commonwealth  of  Kentucky  (n 
Peters  257),  in  which  Henry  Clay  appearing  for  the  defendant 
scored  one  of  his  greatest  legal  triumphs,  the  State  statute  was 
upheld,  in  an  opinion  which  seemed  to  Story,  who  dissented,  in 

In  1841,  Peter  L.  Daniel  of  Virginia  succeeded  Barbour  on  the  latter's 
death.  In  1844,  Robert  C.  Grier  of  Pennsylvania  succeeded  Henry  Bald- 
win. In  1845,  Samuel  Nelson  of  New  York  took  the  place  of  Smith 
Thompson,  who  died  in  1843.  In  the  same  year,  Levi  Woodbury  succeeded 
Story;  and  was  himself  succeeded  on  his  death,  in  1851,  by  Benjamin  R. 
Curtis  of  Massachusetts.  In  1852,  John  A.  Campbell  of  Georgia  succeeded 
McKinley.  In  1856,  Nathan  Clifford  of  Maine  took  Benjamin  R.  Curtis' 
place  on  the  latter's  resignation. 

(1)  The  Development  of  the  Constitution  as  Influenced  by  Chief  Jus- 
tice Marshall,  by  Henry  Hitchcock  (1889). 

(2)  Address  by  John  Bassett  Moore  before  the   Delaware   State  Bar 
Association,  Feb.  5,  1901. 


FEDERAL  LAW.  229 

direct  opposition  to  Marshall's  view,  as  expressed  in  1830  in 
Craig  r.  Missouri.  The  third,  the  Charles  River  Bridge  case,  has 
already  been  described. 

It  was  this  reaction  which  led  Story  to  write,  May  10,  1837 : 

There  will  not,  I  fear,  ever  in  our  day,  be  any  case  in  which  a 
law  of  a  State  or  of  Congress  will  be  declared  unconstitutional ; 
for  the  old  constitutional  doctrines  are  fast  fading  away,  and  a 
change  has  come  over  the  public  mind  from  which  I  augur  little 
good. 

And  a  writer  in  the  North  American  Review,  commenting  on 
volume  eleven  of  Peters  Reports,  said(i)  : 

Within  a  brief  space  we  have  seen  the  highest  judicial  corps 
of  the  Union  wheel  about  in  almost  solid  column  and  retread 
some  of  its  most  important  steps. 

It  is  quite  obvious  that  old  things  are  passing  away.  The  au- 
thority of  former  decisions  which  had  long  been  set  as  land- 
marks in  the  law  is  assailed  and  overthrown  by  a  steady,  destruc- 
tive aim  from  the  summit  of  that  stronghold,  within  which  they 
had  been  entrenched  and  established. 

.  .  .  .  It  is  very  remarkable  also  that  all  the  principles 
yielded  by  these  decisions  either  have  relation  to  the  sovereign 
powers  of  the  Union  or  to  the  very  essence  of  social  obligation. 
.  .  .  We  can  hardly  avoid  the  reluctant  impression  that  it 
(the  judiciary)  has  already  capitulated  to  the  spirit  of  the  old 
confederation ;  and  that  we  are  fast  returning,  among  other 
things,  to  an  old  continental  currency,  and  to  what  were  once 
denominated,  moreover,  anti-federal  doctrines. 

Under  the  progressive  genius  of  this  new  judicial  administra- 
tion we  can  see  the  whole  fair  system  of  the  Constitution  begin- 
ning to  dissolve  like  the  baseless  fabric  of  a  vision. 

While  the  doctrine  of  State  sovereignty  was  upheld  in  these 
cases,  succeeding  cases  soon  dissipated  the  view  that  in  Taney  the 
States'  rights  men  would  find  a  firm  adherent.  No  judge, — not 
even  Marshall  himself, — did  more  to  place  the  Federal  courts  in  a 
position  of  power  and  dignity  than  Taney,  by  his  later  decisions 
on  the  rights  of  corporations  and  to  sue  and  to  be  sued  in  Federal 
courts  and  to  do  business  in  States  outside  those  of  their  in- 
corporation, and  by  his  decisions  on  the  extent  of  the  admiralty 
jurisdiction.  Most  of  the  decisions  of  importance  between  1830 
and  1845  have  already  been  noted  in  Chapters  XXIII  and  XXV 
(supra). 

(i)  See  Constitutional  Law,  a  Review  of  XI  Peters,  in  North  Ainer. 
Rev.,  Vol.  XLVI,  (Jan.  1838). 


230  HARVARD  LAW  SCHOOL. 

In  1847,  arose  the  celebrated  License  Cases,  involving  the  con- 
stitutionality of  the  prohibitionist  liquor  legislation  in  Rhode 
Island,  Masaschusetts  and  New  Hampshire — Thurlow  v.  Massa- 
chusetts (5  Howard  504).  In  these  cases,  Webster,  Rufus 
Choate  and  John  Davis  of  Massachusetts  and  Samuel  Ames(i) 
and  Richard  W.  Greene  of  Rhode  Island  appeared  as  counsel. 
In  general,  the  State  statutes  were  upheld,  as  not  being  an  inter- 
ference with  interstate  commerce.  In  this  same  year,  the  Court 
foreshadowed  in  Waring  v.  Clarke  (5  Howard  441)  the  extended 
admiralty  jurisdiction  which,  four  years  later,  it  was  to  establish. 
This  famous  case  was  argued  by  Reverdy  Johnson  against  John 
J.  Crittenden ;  and  a  similar  case  was  argued  with  it  by  Ames 
and  Whipple  of  Rhode  Island  against  Webster  and  R.  W.  Greene. 

In  the  same  year  (1847),  the  famous  case  of  Jones  v.  Van 
Zandt  (5  Howard  215)  was  decided,  in  which  the  slavery  ques- 
tion had  been  argued  at  great  length  by  William  H.  Seward  and 
Salmon  P.  Chase  (2)  against  Senator  James  T.  Morehead  of 
Kentucky (3).  It  involved  the  constitutionality  of  a  statute  im- 
posing a  penalty  for  harboring  a  fugitive  slave.  In  view  of  the 
fact  that  only  ten  years  later,  in  1857,  in  the  Dred  Scott  case,  the 
Court  attempted  to  settle  by  judicial  decision,  the  political  ques- 
tion of  slavery,  it  is  curious  to  note  that  at  this  time — the  year 
of  the  Mexican  war,  and  three  years  before  the  passage  of  the 
compromise  and  Fugitive  Slave  Act  of  1850,  the  Court  refused 
to  consider  the  political  question  involved,  Judge  Woodbury  say- 
ing in  his  opinion : 

But  before  concluding,  it  may  be  expected  by  the  defendant 
that  some  notice  should  be  taken  of  the  argument  urging  on  us  a 
disregard  to  this  subject  on  account  of  the  supposed  inexpediency 
and  invalidity  of  all  laws  recognizing  slavery  or  any  right  of 
property  in  man.  But  that  is  a  political  question  settled  by  each 
State  for  itself ;  and  the  Federal  power  over  it  is  limited  and  regu- 
lated by  the  sacred  compromises,  and  which  we  possess  no  au- 
thority as  a  judicial  body  to  modify  or  overrule.  .  .  .  What- 

(1)  Born  in  1806,  Brown  1823,  Chief  Justice  of  Rhode  Island  1856-65. 

(2)  Salmon  P.  Chase,  from  this  argument  and  from  his  appearance  in 
numerous  other  slave  cases  at  this  time  acquired  the  title  of  "the  Attorney 
General  for  runaway  negroes." 

See  interesting  account  of  this  case  in  Life  of  William  H.  Seward,  by 
Frederic  Bancroft  (1900).  and  Life  and  Public  Services  of  Salmon  Port- 
land Chase,  by  J.  W.  Schuckers  (1874). 

(3)  Born  in  1797,  Transylvania  Univ.  1818,  Governor  of  Ky.  1834,  U.  S. 
Senator  1841. 


FEDERAL  LAW.  231 

ever  may  be  the  theoretical  opinions  of  any  as  to  the  expediency 
of  some  of  those  compromises  or  of  the  right  of  property  in  per- 
sons which  they  recognize,  this  Court  has  no  alternative,  while 
they  exist,  but  to  stand  by  the  Constitution  and  laws  with  fidelity 
to  their  duties  and  their  oaths.  Their  path  is  a  straight  and  nar- 
row one,  to  go  where  that  constitution  and  laws  lead,  and  not  to 
break  both  by  travelling  without  or  beyond  this. 

In  1849,  tne  subject  of  the  Dorr's  Rebellion  in  Rhode  Island 
arose  in  Luther  v.  Borden  (7  Howard  i)  argued  by  B.  F.  Hal- 
lett  and  John  H.  Clifford  of  Massachusetts  against  Daniel  Web- 
ster and  Whipple  of  Rhode  Island.  In  this  case,  Chief  Justice 
Taney,  in  one  of  his  finest  legal  opinions,  held  the  question  a 
political  one,  and  declined  to  interfere. 

The  important  cases  known  as  the  Passenger  Cases — Smith 
r.  Turner  and  N orris  v.  Boston  (7  Howard  283)  were  decided 
at  this  term.  They  involved  the  constitutionality  of  the  passenger 
tax  statutes  of  New  York  and  Massachusetts,  of  which  Webster 
wrote  to  his  son,  Feb.  7,  1847:  "It  is  strange  to  me  how  any 
Legislature  of  Massachusetts  could  pass  such  a  law.  In  the  days 
of  Marshall  and  Story  it  could  not  have  stood  one  moment.  The 
present  judges  I  fear  are  quite  too  much  inclined  to  find  apolo- 
gies for  irregular  and  dangerous  acts."  He  wrote,  Feb.  3,  1849 : 

"In  my  poor  judgment  the  decision  will  be  more  important  to 
the  country  than  any  decision  since  that  in  the  Steamboat  cause." 
The  Court  itself  was  so  gravely  impressed  with  the  question  pre- 
sented and  so  divided  in  opinion  that  the  cases  were  argued  six 
times — the  New  York  case  in  December,  1845,  by  D.  B.  Ogden 
of  New  York  and  Webster  against  John  Van  Buren,  then  Attor- 
ney General  of  New  York  and  Willis  Hall,  Ex-Attorney  General, 
again  in  December,  1847,  and  a  third  time  in  December,  1848 ; 
the  Massachusetts  case  was  argued  first  by  Webster  and  Rufus 
Choate  against  John  Davis  of  Massachusetts  in  December,  1846, 
again  by  Choate  against  Davis  in  December,  1847,  and  a  third 
time  by  Webster,  Rufus  Choate,  and  J.  Prescott  Hall  of  New 
York  against  John  Davis  and  George  Ashmun  of  Massachusetts 
in  December,  1848.  The  State  laws  were  held  unconstitution- 
al.(i) 

(i)  See  letters  of  Webster  to  Fletcher  Webster,  Feb.  7,  1847,  Dec.  7, 
1847,  Jan.  1848,  June  10.  1849;  to  J.  Prescott  Hall,  Feb.  10,  1849;  and  to 
S.  Blatchford,  Feb.  3,  1849,  in  Writings,  Letters  and  Speeches  of  Samuel 
Webster,  Vol.  XVI  and  XVIII  (1903). 


232  HARVARD  LAW  SCHOOL. 

The  year  1850  saw  the  first  case  in  the  United  States  Supreme 
Court  in  which  a  railroad  was  a  party. 

In  this  year  also,  the  struggle  for  supremacy  between  the 
steamboats  and  the  railroads  came  to  the  front,  in  the  great  case 
of  Pennsylvania  v.  Wheeling  and  Belmont  Bridge  Co.,  (9  How- 
ard 647),  argued  by  Edwin  M.  Stanton  against  Reverdy  John- 
son "with  a  degree  of  ability  and  learning  worthy  of  the  palmiest 
days  of  the  old  Bar  of  the  Supreme  Court."(i)  It  was  held  that 
the  bridge  was  an  obstruction  to  commerce,  and  also  a  nuisance 
as  an  infringement  on  the  Common  Law  rights  of  the  State  of 
Pennsylvania. 

In  1851,  the  question  of  the  right  of  the  States  to  legislate  on 
matters  affecting  interstate  commerce  in  the  absence  of  Con- 
gressional legislation  on  the  subject  arose  in  Cooley  v.  Port 
Wardens  (12  Howard  299)  a  case  involving  the  pilotage  laws  of 
Pennsylvania  and  argued  by  Phineas  P.  Morris  and  Job  R.  Tyson 
against  James  Campbell  and  George  M.  Dallas. 

The  case  definitely  settled  the  long  struggle  which  had  been 
going  on  since  Gibbons  v.  Ogden  in  1824  over  the  field  of  national 
control  of  commerce.  The  decision  "separated  the  field  over 
which  Congress  is  given  the  power  of  regulation  into  two  smaller 
fields — one  consisting  of  matters  of  a  general  nature  in  which 
Federal  jurisdiction,  whether  exercised  or  not,  exclude  all  State 
action;  the  other  field  consisting  of  matters  of  a  local  nature  in 
which  the  States  may  act  until  superseded  by  Congress.  (2) 

In  this  year  came  the  decision  in  the  Genesee  Chief  (12  How- 
ard 443)  a  case  argued  by  Stanley  P.  Mathews  of  Ohio  against 
William  H.  Seward  of  New  York.  Chief  Justice  Taney  held 
that  the  old  Common  Law  doctrine  that  admiralty  jurisdiction 
was  confined  to  the  ebb  and  flow  of  the  tide  was  unsuited  to  this 
country  and  that  the  admiralty  courts  extended  to  the  Great 
Lakes  and  all  navigable  waters  of  the  country.  This  decision 
was  of  extreme  importance  to  American  internal  commerce,  for 
it  threw  into  the  Federal  courts  a  vast  range  of  torts  and  con- 
tracts connected  with  shipping  and  maritime  matters,  thus  giving 


(1)  History  of  the  Supreme  Court  of  the  United  States,  by  H.  G.  Car- 
son, Vol.  II. 

For  interesting  account  of  the  important  case  see  Life  and  Public  Ser- 
vices of  Edwin  M.  Stanton,  by  George  C.  Gorham  (1899). 

(2)  See  The  Right  to  engage  in  Interstate  Commerce,  by  E.  P.  Pren- 
tice Harv.  Law  Rev.,  Vol.  XVII  (1903)  ;  ,and  see  comments  in  Crandall  v. 
Nevada,  6  Wall.  42;  and  Mobile  v.  Kimball,  102  U.  S.  702. 


FEDERAL  LAW.  233 

a  unity  to  this  branch  of  the  law  extremely  desirable  in  view  of 
the  development  of  the  growing  commerce  in  the  new  Western 
States,  (i) 

In  1854,  the  case  of  Smith  v,  Sivormstedt  (16  Howard  288) 
involving  the  division  of  the  great  Methodist  Episcopal  Church 
into  two  organizations  one  for  the  slave  holding  States  and  one 
for  the  other  States,  argued  by  Stanberry  against  Badger  and 
Ewing,  throws  a  light  on  the  manner  in  which  the  slavery  ques- 
tion entered  even  into  religion.  In  1855,  this  question  presented 
itself  in  its  most  dangerous  form  in  the  case  of  Dred  Scott  v. 
Sanford,  argued  by  Montgomery  Blair  of  Maryland(2)  and 
George  Ticknor  Curtis  of  Massachusetts (3)  for  the  slave  Scott, 
and  Reverdy  Johnson  and  H.  S.  Geyer  of  Missouri  (4)  for  the 
owner.  It  was  reargued  in  1856,  and  the  opinion  was  given 
March  6,  1857,  two  days  after  the  inauguration  of  President  Bu- 
chanan (19  Howard  393). 

No  more  fatal  legal  or  political  delusion  ever  appeared  in  any 
judicial  decision  than  in  the  following  words  of  Mr.  Justice 
Wayne. 

The  case  involves  private  rights  of  value  and  constitutional 
questions  of  the  highest  importance  about  which  there  had  be- 
come such  a  difference  of  opinion  that  the  peace  and  harmony  of 
the  country  required  the  settlement  of  them  by  judicial  decision. 

i 

Few  other  cases  of  importance  were  decided  prior  to   1860, 

except  that  of  Ableman  v.  Booth  (21  Howard  506)  in  1859 
in  which  the  constitutionality  of  the  Fugitive  Slave  Act  of  1850 
was  upheld,  and  the  judgment  of  the  Supreme  Court  of  Wis- 
consin declaring  it  unconstitutional  was  reversed. 


(1)  See  article  in  American  Law  Register,  Vol.  I  (1852). 

"As  questions  of  collisions  and  on  the  law  of  carriers  are  daily  arising 
especially  in  our  western  waters  our  readers  will  see  the  very  important 
character  of  this  decision." 

(2)  Born  in  1813. 

(3)  Born  in  1812,  Harv.  1832. 

(4)  Born  in  1790,  U.  S.  Senator  1851-57. 


CHAPTER  XXXV. 

NEW  LAW  1830-1860. 

The  years  1830  to  1860  constitute  a  period  of  legal  develop- 
ment in  State  and  Federal  law  greater  than  any  period  in  the 
legal  history  of  the  country.  During  these  years,  students  and 
practitioners  of  law  were  witnessing  the  slow  up-building  of 
many  a  legal  structure  now  complete. 

Two  things  are  especially  characteristic  of  this  era — the  first 
being  the  increasing  recognition  of  individual  rights  and  protec- 
tion to  individuals(i) — the  emancipation  of  married  women; 
the  safeguards  thrown  around  infants,  insane  and  criminals ; 
prison  reform ;  milder  forms  of  criminal  punishment ;  abolition 
of  imprisonment  for  debt ;  the  treatment  of  bankruptcy  as  a  mis- 
fortune and  not  a  crime ;  the  removal  of  the  bars  against  the  tes- 
timony of  witnesses  and  parties  in  civil  and  criminal  cases ;  the 
recognition  of  labor  unions;  and  the  simplification  of  the  law  by 
codes  and  statutary  revisions,  for  the  benefit  of  laymen  as  well 
as  lawyers. 

These  radical  changes  in  personal  status  brought  about  by 
statutes  and  judicial  decisions  were  undoubtedly  due  in  consider- 
able measure  to  a  political  change,  the  influence  of  which  has  never 
received  adequate  attention — the  gradual  abolition,  from  1820- 
1840,  of  property  qualifications  for  voting  and  for  holding  office. 
Such  property  qualifications  had  existed  in  Connecticut,  until 
1818;  in  Massachusetts  and  New  York,  until  1821;  in  Virginia 
and  Tennessee,  until  1830;  and  in  some  other  States  for  ten  or 
fifteen  years  later.  Their  abolition,  however,  changed  the  char- 
acter of  the  electorate,  democratized  it,  altered  the  constituent 
parts  of  the  Legislatures,  and  thus  produced  entirely  new  ten- 
dencies in  legislation.  This  broadened  spirit  of  the  statutes  after 
1820  is  very  noticeable;  and  as  the  courts  of  the  United  States 
are  generally  responsive  to  their  surroundings,  the  trend  of  judi- 
cial decisions  shows  the  influence  of  the  democratic  popular  voice. 

(i)  See  Jurisprudence  — Its  Development  during  the  past  Century, 
by  Joseph  H.  Beale,  Jr., — Congress  of  Arts  and  Sciences,  Vol.  VII  (1906). 


NEW  LAW.  235 

The  abolition  of  property  qualifications,  therefore,  while  responsi- 
ble, in  politics,  for  the  birth  of  the  new  Democratic  party  and  the 
election  of  President  Jackson  and  his  successors,  was  also  un- 
questionably a  factor  in  the  liberal  and  progressive,  sometimes 
radical,  decisions  for  which  the  courts  (especially  in  Massachu- 
setts, New  York,  and  Pennsylvania)  were  noted  during  this  era. 

The  second  characteristic  of  the  era  was  the  remarkable  mod- 
ernization of  old  legal  doctrines.  The  inventions  of  the  igth  Cen- 
tury were  a  severe  test  of  the  malleability  of  the  old  Common 
Law,  and  of  its  capability  of  adaptation  to  fit  the  new  economic, 
commercial  and  social  conditions.  It  was  to  the  everlasting 
credit  of  the  great  judges  and  of  the  great  lawyers  of  the  times 
that  the  Common  Law  was  proved  fully  adequate  to  meet  the 
strain. 

One  jurist  stood  out  above  all  others  in  his  ability  to  shape 
the  Common  Law  to  modern  needs — Lemuel  Shaw,  the  great 
Chief  Justice  of  Massachusetts,  whose  term  of  service  on  the 
bench  covered  exactly  these  thirty  years  (1830-1860). 

In  the  words  of  the  address  presented  to  him  upon  his  retire- 
ment, Sept.  12,  1860,  by  the  Bar  of  Massachusetts: 

It  was  the  task  of  those  who  went  before  you,  to  show  that 
the  principles  of  the  common  and  the  commercial  law  were  avail- 
able to  the  wants  of  communities  which  were  far  more  recent 
than  the  origin  of  those  systems.  It  was  for  you  to  adapt  those 
systems  to  still  newer  and  greater  exigencies ;  to  extend  them 
to  the  solution  of  questions,  which  it  required  a  profound  sagacity 
to  foresee,  and  for  which  an  intimate  knowledge  of  the  law  often 
enabled  you  to  provide,  before  they  had  even  fully  arisen  for 
judgment.  Thus  it  has  been,  that  in  your  hands  the  law  has  met 
the  demands  of  a  period  of  unexampled  activity  and  enterprise : 
while  over  all  its  varied  and  conflicting  interests  you  have  held 
the  strong,  conservative  sway  of  a  judge,  who  moulds  the  rule 
for  the  present  and  the  future  out  of  the  principles  and  pre- 
cedents of  the  past.  Thus  too,  it  has  been,  that  every  tribunal  in 
this  country  has  felt  the  weight  of  your  judgments,  and  jurists  at 
home  and  abroad  look  to  you  as  one  of  the  great  expositors  of  the 
law.  .  .  . 

In  so  great  reverence  was  "the  Old  Chief",  as  he  was  affection- 
ately called,  held  by  the  public,  that  the  story  is  told  that  when 
inquiry  was  made  of  a  member  of  the  Massachusetts  Constitu- 
tional convention  of  1853,  "What  are  they  doing  at  the  State 
House?"  the  reply  was,  "Discussing  whether  Judge  Shaw  is  a 


236  HARVARD  LAW  SCHOOL. 

divine  institution  or  a  human  contrivance"(i).     (The  debate  was 
on  the  question  of  an  Elective  Judiciary.) 

Shaw's  general  attitude  of  mind  in  approaching  the  problems 
of  law  as  affected  by  modern  conditions  of  life  is  well  illustrated 
in  the  following  sentence  from  one  of  his  early  opinions  (2)  : 

The  case  of  a  vessel  towed  by  a  steamboat  is  certainly  new  in 
facts  and  could  not  have  been  anticipated  by  the  founders  of 
the  Common  Law  ;  but  it  is  one  of  the  advantages  of  the  Common 
Law  that  it  depends  upon  plain,  equitable  and  practicable  prin- 
ciples, adapted  to  all  times  and  occasions  and  broad  and  compre- 
hensive enough  to  embrace  new  cases  as  they  arise. 

Probably  the  greatest  services  which  Shaw  performed  to  the 
commercial  development  of  the  United  States  were  in  the  doc- 
trines which  he  laid  down  as  to  railroads  (already  described  in 
Chapter  XXXI)  and  as  to  water  courses. 

MILL  ACT  AND  WATERCOURSE  LAW. 

In  1829,  in  a  review  of  Angell  on  Watercourses  which  had  ap- 
peared in  that  year,  the  American  Jurist  said : 

The  law  in  relation  to  water  courses  is  every  day  becoming 
more  important  as  our  mills  and  manufactories  multiply  and  the 
improvements  in  the  service  of  agriculture  lead  to  a  more  general 
application  of  water  to  the  purposes  of  husbandry. 

It  was  Judge  Shaw  who  placed  these  mills  and  manufactories 
on  a  firm  foundation,  by  establishing  the  constitutionality  of  the 
so-called  "Mill  Acts",  which  allowed  a  mill  owner  to  dam  a 
stream  and  to  flow  neighboring  lands  on  payment  of  damages. 
These  acts,  in  derogation  of  Common  Law  doctrines,  had  been 
passed  in  the  latter  part  of  the  i8th  Century  simply  to  aid  the 
growth  of  grist  mills  on  small  streams,  and  without  thought  of 
their  application  to  large  factories.  But  as  the  protective  tariff 
policy  of  the  country  became  fixed  and  as  great  cotton,  iron  and 

(1)  Being  a  man  of  strong  views  on  all  matters  as  well  as  on   the 
law  Judge  Shaw  was  frequently  treading  on  people's  toes  of  which  the 
following   entry    in    Richard    H.    Dana's   diary,    April  8,    1856,    gives    an 
amusing  glimpse : 

"The  truth  is,  Judge  Shaw  is  a  man  of  intense  and  doting  biases  in 
religious,  political  and  social  matters.  Unitarianism,  Harvard  College, 
the  social  and  political  respectabilities  of  Boston  are  his  idola  specus  et 
fori." 

See  Richard  Henry  Dana,  by  C.  F.  Adams,  Vol.  I. 

(2)  Sprout  v.  Hcmemvay,  14  Pick,   i    (1833). 


NEW  LAW.  237 

woolen  mills  were  built  on  the  rivers,  these  corporations  and 
other  large  mill  dam  corporations  took  advantage  of  these  old 
statutes,  to  flood  large  tracts  of  land  and  secure  very  valuable 
water  powers — the  more  valuable  because  prior  to  1845  tne  ra'l~ 
roads  were  not  yet  bringing  coal  in  any  quantity  out  of  Penn- 
sylvania. 

Naturally,  the  farmers  whose  lands  were  flooded  felt  this  mill 
act  privilege  to  be  a  hardship  on  them,  and  a  conflict  arose,  the 
results  of  which  were  to  have  immense  effect  on  the  business 
growth,  especially  of  manufacturing  New  England. (i) 

Shaw's  predecessor,  Chief  Justice  Isaac  Parker  had  viewed  the 
application  of  old  law  and  old  conditions  to  the  modern  uses  as  a 
somewhat  doubtful  policy  and  had  said  in  a  case  in  1814(2)  : 

I  cannot  help  thinking  that  this  statute  was  incautiously  copied 
from  the  ancient  colonial  and  provincial  acts,  which  were  passed 
when  the  use  of  mills,  from  the  scarcity  of  them,  bore  a  much 
greater  value  compared  to  the  land  used  for  the  purposes  of 
agriculture  than  at  present.  But  with  this  we  have  nothing  to  do. 
As  the  law  is,  so  we  must  declare  it. 

Chief  Justice  Shaw,  however,  in  a  series  of  decisions  begin- 
ning in  1831  and  continuing  up  to  1853,  firmly  fixed  the  doctrine 
that  the  provisions  of  these  Mills  Acts  so  tended  to  promote  the 
public  interest  that  they  must  be  upheld  as  constitutional,  on 
grounds  of  public  policy — either  as  an  exercise  of  the  right  of 
eminent  domain,  or  (in  later  decisions)  as  a  part  of  the  police 
power  regulating  for  the  public  convenience  relative  rights  of 
riparian  proprietors.  Thus  he  said  in  1831(3)  : 

(1)  "Under     the    present    system      of  the     laws    of     Massachusetts, 
the  yeomanry  of  that  State  especially  the  small   farmers  often   feel  that 
they  are  oppressed  and  the  question  is  often  asked  whether  the  exercise 
of  such  a  power  by  one  citizen  over  another  can  be  constitutional.     .     .     . 
The  ordinary  rules  of  right  and  wrong  as  to  the  enjoyment  of  private 
property  seem  not  to  apply  to  estates  which  border  on  any  of  the  beauti- 
ful and  healthy  streams  which  enliven  our  scenery.     They  may  be  sacri- 
ficed  to   the    speculating    spirit   of   the   manufacturers.      No   matter    with 
what   labor   acquired,   no  matter  with   what   fond   associations  connected, 
the  farmer  may  be  obliged  to  yield  his  acres  to  another's  enjoyment;  and 
the  soil  which  his  fathers  may  have  tilled,  the  tree  which  sheltered  him 
in  his  childhood,  the  scenes  of  his  early  sports,  and  the  very  graves  of 
his   kindred,   may   fade  beneath   the   hand   of  the  manufacturer   and   the 
shiny  pool  which  drives  his  spindles  may  send  forth  its  miasmata  where 
the  green  meadow  and  the  waving  harvest  once  greeted  the  eye.     And 
for  this  the  recompence  to  be  sought  is  an  annuity  to  be  estimated  by 
strangers." 

See  American  Jurist,  Vol.  I   (1829). 

(2)  Stouiell  v.  Flagg,  11  Mass.  368  (1814). 

(3)  Fiske  v.  Framingham  Mfg.  Co.,  12  Pick.  68  (1831). 


238  HARVARD  LAW  SCHOOL. 

We  think  these  rights  will  be  found  to  rest  for  their  justification, 
partly  upon  the  interest  which  the  community  at  large  has  in  the 
use  and  employment  of  mills,  and  partly  upon  the  nature  of  the 
property  which  is  often  so  situated  that  it  could  not  be  beneficially 
used  without  the  aid  of  the  power. 

and  finally  in  Hazcn  v.  Essex  Co.   (12  Cush.  478),  in  1853,  he 
summed  up : 

The  establishment  of  a  great  mill  power  for  manufacturing 
purposes  as  an  object  of  great  public  interest  and  especially  since 
manufacturing  has  come  to  be  one  of  the  great  public  industrial 
pursuits  .  .  .  seems  to  have  been  regarded  by  the  Legislature 
and  sanctioned  by  the  jurisprudence  of  the  Commonwealth,  and  in 
our  judgment  rightly  so  in  determining  what  is  a  public  use  justi- 
fying the  exercise  of  the  right  of  eminent  domain. 

Such  were  the  broad  gauge  lines  on  which  Shaw  developed  this 
law.  In  a  similar  spirit  of  regard  for  modern  industrial  condi- 
tions he  gave  his  great  decisions  which  settled  the  law  of  riparian 
proprietors'  rights.  These  decisions  were  followed  very  gen- 
erally in  other  States.  Had  the  cases  been  decided  on  narrower 
lines,  the  commercial  career  of  many  of  the  States  of  this  country 
would  have  been  greatly  changed. 

THE  LAW  OF  TORTS. 

With  the  advent  of  railroads  and  the  body  of  law  which  arose 
out  of  their  relations  to  the  public  and  to  their  employees  came 
the  development  of  the  Law  of  Torts  in  the  branch  with  which 
modern  courts  are  chiefly  concerned  with  it — Accident  Law. 

As  is  well  known  the  Common  Employment  or  Employer's 
Non-Liability  doctrine  was  established  in  this  country  in  1842 — 
five  years  later  than  in  England(i) — by  Chief  Justice  Shaw  in 
the  noted  case  of  Fanvell  v.  Boston  and  Worcester  R.  R.  (4 
Mete.  49). 

As  already  noted  (Chapter  XXXI)  the  decision  in  this  case 
was  largely  influenced  by  economic  conditions  and  the  need  of 
favoring  the  young  and  struggling  institution  of  railroads  even  if 
such  action  placed  a  burden  on  a  class  less  able  to  bear  it. 

The  tendency  to  favor  and  promote  the  newly  instituted  rail- 
roads was  seen  also  in  a  leading  case  which  arose  in  Massa- 

(i)  Priestley  v.  Fowler,  3  Meeson  and  Welsby,  was  decided  in  Eng- 
land, in  1837. 


NEW  LAW.  239 

chusetts  three  years  after  the  Farvvell  case — that  of  Ingalls  v. 
Bills  (9  Mete,  i),  in  1845.  In  this  case,  splendidly  argued  by 
Simon  Greenleaf,  then  Professor  at  the  Harvard  Law  School, 
as  counsel  for  the  winning  defendant,  it  was  held  that  a  stage 
coach  proprietor  or  common  carrier  was  not  liable  to  a  passenger 
for  damages  caused  by  latent  defects  in  a  vehicle.  The  decision 
was  undoubtedly  influenced  by  the  fact  that  a  contrary  holding 
would  have  borne  hardly  on  the  struggling  railroads.  It  was 
bitterly  criticized  on  this  account  by  the  Law  Reporter  at  the 
time,  as  upholding  the  doctrine  that  the  rights  of  property  were 
regarded  as  more  sacred  than  those  of  the  person. 

The  lateness  of  the  development  of  the  branches  of  Accident 
Law  which  now  fill  the  law  reports  may  be  realized  in  noting  that 
the  first  accident  case  brought  in  a  manufacturing  State  like  Mas- 
sachusetts by  an  employee  against  a  manufacturing  corporation 
was  in  1850(1)  ;  and  in  Redfield  on  Raihvay,  published  as  late  as 
1858,  only  five  pages  are  devoted  to  the  law  relating  to  accidents 
caused  by  negligence  of  fellow  servants  or  use  of  machinery  and 
appliances.  The  first  accident  case  for  defect  in  a  sidewalk 
brought  in  Massachusetts  against  a  city  or  town  was  in  1849(2). 

Actions  for  death  caused  by  negligence  arose  in  England  after 
the  passage  of  Lord  Campbell's  Act  (9  &  10  Viet.  c.  93),  in 
1846.  New  York  followed  in  this  country  by  giving  similar 
cause  of  action,  through  a  statute  passed  in  1847;  and  Ohio, 
Pennsylvania,  and  Indiana,  in  1851. 

The  question  of  the  right  of  recovery  at  Common  Law  in  such 
cases  had  arisen  for  the  first  time  in  a  case  in  Massachusetts  in 
1848,  in  which  the  court  denied  the  right,  saying:  "These  actions 
raise  a  new  question  in  our  jurisprudence.  ...  If  such  a 
law  would  be  expedient  for  us,  it  is  for  the  legislature  to  make 

it."(3) 

The  slight  part  which  Torts  played  in  the  law  of  the  day  may 

be  seen  from  the  fact  that  the  first  American  law  book  on  the 
subject  did  not  appear  until  1859 — Francis  Milliard's  The  Law 

(1)  Albro  v.  Agawam  Canal  Co.,  6  Cush.  75  (1850). 

(2)  Bacon  v.  Boston,  3  Cush.  1*74  (1849). 

(3)  Carey  v.  Berkshire  R.  R.  Co.,  I  Cush.  475  (1848). 

In  a  note  relative  to  this  case  in  United  States  Law  Magazine  for  Jan., 
1851,  it  is  said:  "The  question,  entirely  new  in  our  jurisprudence,  was 
here  raised  concerning  the  legal  right  to  complain  in  a  civil  court  for  the 
death  of  a  human  being  as  an  injury.  At  the  argument,  no  case  was 
cited  in  which  a  like  action  had  been  the  subject  of  adjudication,  or  even 
of  discussion." 


240  HARVARD  LAW  SCHOOL. 

of  Torts  and  Private  Wrongs  of  which  the  Law  Reporter  (Vol. 
XXII)  said  in  a  review. 

This  work  is  a  well  conducted  attempt  to  do  for  the  law  of 
private  wrongs  what  has  been  so  often  and  so  elaborately  done 
for  simple  contracts,  to  collect  in  one  book  the  principles  and 
cases  applicable  to  all  the  various  departments  of  the  general 
subject :  An  attempt,  as  the  author  justly  says,  never  made  be- 
fore either  in  England  or  America  excepting  in  a  very  general 
way  as  for  example  in  Blackstone's  Commentaries. 

The  Law  of  Torts  was  of  course  much  developed  through  the 
introduction  of  the  many  new  inventions  for  which  this  period 
was  especially  noted,  changing  so  greatly  the  economic,  social 
and  commercial  conditions  of  the  times. 

TELEGRAPH   LAW. 

The  electric  telegraph  was  first  put  in  successful  operation  in 
1844,  and  with  that  year  began  a  new  body  of  law  relating  to  this 
invention.  In  1849,  tne  first  statute  in  Massachusetts  relating  to 
telegraph  companies  was  enacted,  and  one  of  the  early  cases  in 
the  United  States  involving  the  new  invention  was  a  case  of 
injury  to  a  traveller  on  the  highway  from  a  telegraph  pole  es- 
tablished under  this  statute — Young  v.  Yarmouth  (9  Gray  386), 
in  1857.  (i) 

The  first  reported  telegraph  case  arose  in  1851,  in  one  of  the 
inferior  courts  of  Pennsylvania,  involving  a  statute  forbidding 
disclosure  of  a  message. (2) 

In  the  next  nine  years  through  the  year  1860,  only  fifteen  cases 
arose,  relating  to  telegraph  companies.  Most  of  these  cases  in- 
volved the  question  of  the  liability  of  the  companies  for  mis- 
takes in  transmission  or  delivery  of  messages,  whether  the  com- 
pany was  to  be  subject  to  the  liability  of  insurer  as  a  common 
carrier,  and  regardless  of  negligence.  By  1860,  the  law  was 
well  settled  against  such  liability (3) — another  instance  of  the 
tendency  of  the  courts  to  construe  the  Common  Law  in  aid  of  the 
promotion  of  a  new  industry. 

The  first  telegraph  case  in  the  United  States  Supreme  Court 

(1)  See   also  Byron   v.   N.    Y.   State   Printing   Tel.   Co.,  26  Barb.   39 

(1859)- 

(2)  See  Telegraph  Cases,  by  Charles  Allen   (1873). 

(3)  See  the  famous  "two  hundred  bouquets"  case  of  N.  Y.  and  Wash- 
ington Printing  Tel.  Co.  v.  Dryburg,  35  Pa.  St.  298  (1866). 


NEW  LAW.  241 

was  decided  in  1858 — Western  Tel.  Co.  v.  Magnetic  Tel.  Co.  (21 
Howard  456)  in  which  it  was  held  that  where  there  was  no 
infringement  of  patent,  no  company  had  a  monopoly  of  the  right 
to  telegraph  between  two  places.  "It  must  be  expected  that  great 
competition  will  exist  in  the  transmission  of  intelligence,  when 
telegraphic  lines  have  been  established  throughout  the  country." 
No  case  was  reported  in  Massachusetts  until  1866  when  it 
was  held  that  telegraph  companies  were  not  subject  to  the  lia- 
bility of  common  carriers — Ellis  v.  Amer.  Tel.  Co.  (13  Allen 
226),  Chief  Justice  Bigelow  (Shaw's  successor)  saying: 

It  appears  to  have  been  taken  for  granted  at  the  trial  of  this 
case,  as  it  certainly  was  in  the  arguments  of  learned  counsel  at  the 
bar  of  this  court  that  the  rights  of  the  parties  were  to  be  de- 
termined solely  by  having  recourse  to  the  rules  and  principles  of 
the  Common  Law.  This  we  think  an  error.  We  entertain  no 
doubt  that  these  would  have  been  found  fully  adequate  to  the  sat- 
isfactory solution  of  the  various  questions  to  which  the  pursuit 
of  this  novel  branch  of  human  skill  and  industry  will  in  the  course 
of  time  necessarily  give  rise.  But  the  legislature  of  this  Com- 
monwealth have  not  deemed  it  wise  or  expedient  to  leave  to  the 
slow  progress  of  judicial  determination  the  regulation  of  a  busi- 
ness on  which  so  many  of  the  daily  transactions  of  life  involving 
the  most  important  rights  and  interests  are  made  to  depend. 

GAS  CORPORATION    LAW. 

Another  economic  improvement  in  this  era  introduced  a  new 
line  of  cases  and  a  new  topic  in  the  law — the  liability  of  gas  cor- 
porations. 

The  first  negligence  case  in  the  United  States  against  a  gas 
company  was  in  1850 — Brown  v.  N.  Y.  Gaslight  Co.  (Anthon's 
N.  P.  Cases  351).  The  first  case  in  Massachusetts  was  for  negli- 
gence in  allowing  leaks — Holly  v.  Boston  Gas  Light  Co.  (8  Gray 
123),  in  1857. 

Similar  cases  for  injuries  due  to  escaping  gas  arose  in  many 
instances  in  Connecticut,  New  York  and  Pennsylvania  1850- 
1860.  ( i) 

STREET    RAILWAY    LAW. 

In  1852,  the  first  successful  street  railway  was  started  in  New 
York.  In  1853,  the  Cambridge  Street  Railway  Company  and 

(i)     Digest  of  Gas  Cases,  by  Charles  P.  Greenough  (1883). 


HARVARD  LAW  SCHOOL. 

the  Metropolitan  Street  Railway  Company  were  chartered  in 
Massachusetts,  and  began  running  in  1856.  The  first  compre- 
hensive case,  dealing  with  the  respective  rights  of  street  cars  and 
other  travellers  on  the  highway  was  decided  in  1860 — Common- 
wealth v.  Temple  (14  Gray  69),  the  opinion  in  which  was 
one  of  the  greatest  as  well  as  one  of  the  last  of  Chief  Justice 
Shaw's  opinions,  and  displayed  his  wonderful  ability  to  adopt  the 
Common  Law  to  new  conditions : 

Since  horse  railroads  are  becoming  frequent  in  and  about  Bos- 
ton and  are  likely  to  become  common  in  other  parts  of  the  Com- 
monwealth, it  is  very  important  that  the  rights  and  duties  of  all 
persons  in  the  community,  having  any  relations  with  them  should 
be  distinctly  known,  and  understood,  in  order  to  accomplish  all 
the  benefits,  and  as  far  as  practicable  avoid  the  inconveniences, 
arising  from  their  use.  .  .  .  These  railroads  being  of  recent 
origin,  few  cases  have  arisen  to  require  judicial  consideration, 
and  no  series  of  adjudicated  cases  can  be  resorted  to  as  pre- 
cedents to  solve  the  various  new  questions  to  which  they  may  give 
rise. 

But  it  is  the  great  merit  of  the  Common  Law  that  it  is  founded 
upon  a  comparatively  few  broad,  general  principles  of  justice, 
fitness,  and  expediency,  the  correctness  of  which  is  generally 
acknowledged,  and  which  at  first  are  few  and  simple ;  but  which, 
carried  out  in  their  practical  details  and  adapted  to  extremely 
complicated  cases  of  fact,  give  rise  to  many  and  often  perplexing 
questions.  Yet  these  original  principles  remain  fixed,  and  are 
generally  comprehensive  enough  to  adapt  themselves  to  new  insti- 
tutions and  conditions  of  society,  modes  of  commerce,  new  usages 
and  practices,  as  the  progress  of  society  in  the  advancement  of 
civilization  may  require. 

The  first  accident  case  against  a  street  railway  in  Massachusetts 
was  decided  in  1862 — Wright  v.  Maiden  and  Melrose  Street  Ry. 
(4  Allen  283). 

GRAIN    ELEVATOR    LAW. 

In  the  decade  1850-1860,  economic  conditions  in  Europe  and  in 
the  United  States  were  laying  the  foundations  for  a  new  branch 
of  law  relating  to  the  cultivation  and  storage  of  grain.  The 
year  1854  marked  the  culmination  of  bad  crops  and  political 
troubles  in  Europe. (i)  Immigration  to  the  United  States  was 

(i)     George  Ticknor  wrote  to  King  John  of  Saxony,   Nov.   20,   1855. 
See  Life  and  Letters  of  George  Ticknor,  Vol.  II : 
"Your  short  crops  in  Europe  are  filling  the  great  valley  of  the  Missis- 


NEW  LAW.  243 

at  its  highest,  having  grown  from  114,371  in  1845  to  427,833. 
These  immigrants,  and  the  emigrants  from  New  England  sent 
out  under  the  auspices  of  the  New  England  Emigrant  Aid  Com- 
pany to  save  Kansas  from  slavery,  were  about  to  develop  the 
great  Western  farm  lands. 

In  this  year  1854,  the  great  case  of  Seymour  v.  McCormick 
(15  Howard  480),  sustaining  the  validity  of  the  McCormick 
Reaping  Machine  patent  was  decided  in  the  United  States  Su- 
preme Court.  By  1855,  grain  elevator  and  warehouse  law  began 
to  come  into  prominence  in  the  law  reports  in  Ohio,  Iowa  and 
Wisconsin(i)  ;  and  by  1867,  it  was  said  in  a  Massachusetts  case 
— Cushing  v.  Breed  (14  Allen  376)  :  "The  use  of  elevators  for  the 
storage  of  grain  has  introduced  some  new  methods  of  dealing; 
but  the  rights  of  parties  who  adopt  these  methods  must  be  by  the 
principles  of  the  Common  Law." (2) 

INSURANCE  LAW. 

In  the  early  years  of  this  period  1830-1860,  the  only  form  of 
insurance  which  received  any  great  development  was  Marine  In- 
surance and  the  law  reports  are  strikingly  filled  with  cases  on  this 
subject.  In  the  making  of  this  law,  as  well  as  in  that  of  Patents 
and  Copyrights,  Judge  Joseph  Story  stood  at  the  head  of  all 
judges. 

Arnould  in  the  preface  to  his  book  on  Marine  Insurance  pub- 
lished in  London  in  1848,  says : 

I  have  resorted  generally  to  the  decisions  of  the  American 
tribunals  on  the  many  novel  and  interesting  points  in  the  law  of 
Marine  Insurance  which  in  a  commerce  of  vast  activity  and  a 

sippi  with  population  and  wealth.  The  wheat  which  it  costs  the  great 
farmers  in  Ohio,  Illinois  and  Michigan — whose  population  in  1850  was 
above  three  millions  and  is  now  above  four — the  wheat  which  costs  $40 
to  those  great  farmers  to  raise,  they  can  sell  at  their  own  doors  for  above 
$100  and  it  is  sold  in  London  and  Paris  for  nearly  $300.  Indeed  your 
European  wars  are  not  only  making  the  States  in  the  valley  of  the  Miss- 
issippi the  preponderating  powers  in  the  American  nation  but  you  are 
making  them  the  granary  of  the  world,  more  than  ever  Egypt  and  Sicily 
were  to  Rome.  So  interchangably  are  the  different  parts  of  Christendom 
connected,  and  so  certainly  are  the  fates  and  fortunes  of  each  in  one 
way  or  another  dependent  on  the  condition  of  the  whole.  The  war  in 
the  Crimaea  raises  the  price  of  land  in  Ohio.  .  .  .  The  proletaires 
of  Paris  enrich  the  farmers  in  Illinois  of  whose  existence  they  never 
heard." 

(1)  See  especially  Chase  v.  IVashburn,  I  Ohio  St.  244. 

(2)  See  also  articles  by  Oliver   Wendell   Holmes,  jr.,  on  Grain  Ele- 
vator Cases  in  Amer.  Law  Review,  Vol.  VI. 


244  HARVARD  LAW  SCHOOL. 

sea  coast  of  unrivalled  extent  seem  to  be  continually  arising  for 
their  adjudication.  In  the  present  state  of  legal  knowledge,  no 
work  professing  to  treat  with  any  tolerable  degree  of  complete- 
ness the  subject  could  avoid  frequent  reference  to  the  Jurisprud- 
ence of  the  United  States.  The  names  of  Chancellor  Kent  and 
Mr.  Joseph  Story  have  indeed  an  European  celebrity  which 
would  make  apology  ridiculous  for  the  citation  of  their  authority. 

Gradually,  however,  the  subject  of  Fire  Insurance  attained  im- 
portance, as  the  incorporation  of  mutual  fire  insurance  companies 
became  general.  Yet  as  late  as  1837,  a  report  of  a  Commission 
in  Massachusetts  stated : 

It  is  not  too  much  to  affirm  that  the  whole  law  of  insurance  as 
far  as  it  has  been  ascertained  and  established  by  judicial  de- 
cisions and  otherwise  may  now  be  stated  in  a  text  not  exceeding 
thirty  pages  of  the  ordinary  size. 

And  even  in  1852,  Chief  Justice  Shaw  said  in  Fogg  v.  Middle- 
sex Fire  Ins.  Co.  (6  Cush.  336)  : 

Fire  insurance  as  a  branch  of  legal  knowledge  is,  compara- 
tively speaking,  in  its  rudiments.  The  cases  on  marine  insurance 
throw  little,  if  any,  light  on  the  present  question.  .  .  .  The 
question  of  loss  by  lightning  is  very  summarily  disposed  of  in 
the  older  authorities  by  treating  electricity  as  fire  from  heaven. 
But  the  progress  of  knowledge  has  led  to  juster  notions  of  the 
nature  of  lightning  and  of  course  to  different  conclusions  touch- 
ing its  legal  relations. 

And  in  the  same  year,  he  said  in  Scripture  v.  Lozvell  Mutual 
Fire  Ins.  Co.  (6  Cush  356)  : 

Fire  insurance  has  become  so  important  in  the  business  of  the 
community  that  it  is  much  to  be  regretted  that  the  practical  man- 
agement of  the  business  is  not  conducted  with  more  care  and 
skill  in  its  details  so  as  better  to  secure  the  rights  of  the  parties 
as  they  are  to  be  established  by  the  contract  when  rightly  made 
and  rightly  understood. 

The  advent  of  steamboats  and  railroads  making  life  more 
hazardous,  was  contemporaneous  with  a  great  growth  of  Life  and 
Accident  Insurance  Companies  and  the  rise  of  an  entirely  new 
body  of  law. 

The  earliest  and  one  of  the  most  noted  Life  Insurance  Com- 
panies was  chartered  in  Massachusetts  in  1818 — the  Massachu- 
setts Hospital  Life  Insurance  Company.  Kent  in  his  Commen- 
taries as  late  as  1844  (5th  Edition)  said: 


NEW  LAW.  245 

The  practice  in  Europe  of  life  insurance  is  in  a  great  degree 
confined  to  England  and  it  has  been  introduced  into  the  United 
States.  It  is  now  slowly  but  gradually  attracting  the  public  at- 
tention and  confidence  in  our  principal  cities. 

The  only  case  cited  by  him  on  the  subject  was  Lord  v  Dall,  de- 
cided in  Massachusetts,  in  1810. 

Prior  to  1850,  five  cases  only  had  been  reported  as  decided  by 
the  State  and  Federal  courts  on  the  subject ;  and  "in  some  cases  of 
the  States  no  case  has  as  yet  been  reported,"  said  a  writer  in 
1872(1). 

The  first  question  litigated  was  that  of  insurable  interest — 
on  which  twelve  cases  were  decided  prior  to  1860,  the  first  case 
in  Massachusetts  arising  in  1852 — Morrell  v.  Trenton  Ins.  Co. 
(10  Cush.  282),  and  the  leading  case  on  the  subject  being  de- 
cided by  Chief  Justice  Shaw  in  1856  "on  the  rules  and  principles 
of  the  Common  Law"  in  Loornis  v.  Eagle  Life  and  Health  Ins. 
Co.  (6  Gray  396). 

On  the  important  questions  of  false  representation  and  war- 
ranty— a  subject  so  much  litigated  later,  the  leading  case  arose 
in  1850  in  Massachusetts — Vose  v.  Eagle  Life  and  Health  Ins. 
Co.  (6  Cush.  421).  In  this  case  it  was  said: 

Insurance  on  life  was  formerly  held  to  be  unlawful  and  was 
forbidden  in  some  foreign  countries  by  particular  enactments  as 
being  repugnant  to  good  morals  and  opening  a  door  to  abuses. 
But  a  very  different  view  of  the  subject  is  taken  at  the  present 
time.  Life  insurance  has  now  become  a  very  common  and  a  very 
extensive  business  and  is  regarded  as  highly  beneficial  to  the  com- 
munity. 

As  late  as  1873,  James  Schouler  in  his  book  on  Personal  Prop- 
erty wrote : 

Like  the  historian  of  some  American  State  in  the  far  West, 
the  text  writer  on  life  insurance  finds  his  materials  fresh,  and 
modern  methods  at  work  in  shaping  them.  The  lawyer  discard- 
ing his  Coke,  Blackstone  and  Kent  might  lay  his  hand  on  a  few 
volumes,  perhaps  exactly  three  which  are  hardly  yet  dry  from  the 
press  and  say  that  he  had  the  whole  jurisprudence  of  life  insur- 
ance as  a  special  subject  so  far  as  the  English  and  American 
Courts  had  laid  in  open.  Far  different  will  it  be  twenty  years 
hence. 


(i)     Digest  of  Life  and  Accident  Insurance  Cases,  by  John  R.  Sharp- 
stein    (1872). 


246  HARVARD  LAW  SCHOOL. 

PATENT  LAW. 

Between  1810  and  1830,  the  Supreme  Court  gave  decisions  in 
only  five  patent  cases ;  and  the  Circuit  Courts  in  only  thirteen, 
most  of  which  were  decided  by  Judge  Story,  in  the  First  Circuit. 
The  real  history  of  Patent  Law  in  the  United  States  dates  from 
the  year  1836,  in  which  year,  the  building  of  the  Patent  Office, 
then  a  branch  of  the  Department  of  State,  was  burned,  destroy- 
ing the  models  and  records  of  the  old  system,  under  which  only 
10,020  patents  had  been  issued.  In  that  year  also,  a  complete 
revision  of  the  Patent  Laws  was  enacted  by  Congress  and  the 
United  States  Patent  Office  (which,  in  1849,  became  a  branch  of 
the  Department  of  the  Interior)  was  established. 

As  illustrative  of  the  increase  of  patent  litigation,  it  is  to  be 
noted  that  the  list  of  adjudicated  patents  contains  18  patents 
issued  between  1776  and  1815;  57  between  1816  and  1835;  395 
between  1836  and  1859  inclusive.  ( i ) 

Between  1835  and  1845,  a  very  large  proportion  of  the  patent 
cases  in  the  country  were  tried  before  Judge  Joseph  Story  in  the 
United  States  Circuit  Court  in  Boston — Benjamin  R.  Curtis, 
Franklin  Dexter,  Charles  G.  Loring,  Benjamin  Rand  and  Willard 
Phillips  appearing  as  the  principal  counsel.  It  may  also  be 
noted  that  Professor  Simon  Greenleaf  was  counsel  in  many  pat- 
ent cases,  one  of  the  most  noted  being  that  involving  the  Phillips 
friction  match  patent  of  1836 — Ryan  v.  Goodwin  (3  Sumner 
514)  in  i839.(2) 

It  was  not  until  after  1845,  however,  that  patent  cases  began 
to  come  before  the  United  States  Supreme  Court  in  any  num- 
ber. 

One  of  the  early  famous  cases  was  decided  in  1842 — Prouty 
z:  Ruggles  (16  Peters  336),  in  which  Rufus  Choate  argued 
against  Franklin  Dexter.  In  1846,  the  Woods  worth  planing  ma- 
chine patent  of  1828  was  involved  in  Wilson  v.  Rousseau  (4 
Howard  646)  and  other  cases,  one  being  argued  by  William  H. 
Seward,  John  H.  B.  Latrobe(3)  and  Daniel  Webster  against 

(1)  Adjudicated  Patents,  by  Lineas  D.  Underwood  (1907). 

(2)  Judge  Story  in  his  opinion  said  as  to  this  patent: 

"The  combination  is  apparently  very  simple ;  but  the  simplicity  of  an  in- 
vention, so  far  from  being  an  objection  to  it  may  constitute  its  great 
result  and  value.  Indeed  to  produce  a  great  result  by  very  simple  means 
before  unknown  or  unthought  of  is  not  infrequently  the  peculiar  charac- 
teristic of  the  very  highest  class  of  minds." 

(3)  Born  in  1803. 


NEW  LAW.  247 

Thaddeus  Stevens(i)  ;  another  being  argued  by  Henry  D.  Gilpin 
against  John  B.  Henderson  and  Reverdy  Johnson  (2). 

Stimpson's  grooved  railroad  rail  patent  of  1831  was  involved 
in  the  case  of  Stimpson  v.  Baltimore  and  Susquehannah  R.  R. 
Co.,  in  1850,  in  which  Brantz  Mayer  argued  against  James  Camp- 
bell. 

Tatham's  lead  pipe  patent  of  1846  was  adjudicated  in  1852  and, 
in  1859,  in  Leroy  v.  Tat  ham  (14  Howard  156,  22  Howard  132). 

In  1852,  one  of  the  most  noted  cases  in  all  patent  litigation  in- 
volving one  of  the  most  bitterly  fought  patents — Goodyear's  India 
rubber  patent  of  1844,  was  decided  by  Judge  Grier  sitting  in  the 
United  States  Circuit  Court  in  New  Jersey  (2  Wall  Jr.  283), 
the  patent  being  upheld.  In  this  case  Daniel  Webster  made  his 
last  great  legal  argument,  Rufus  Choate  being  the  opposing 
counsel. 

In  1853,  the  head  note  to  a  case  in  15  Howard  announced  the 
decision  in  a  matter  of  immense  import  to  the  development,  com- 
mercial, political  and  legal,  of  this  country — the  case  of  O'Reilly 
v.  Morse.  "Morse  was  the  first  and  original  inventor  of  the 
electro  magnetic  telegraph  for  which  a  patent  was  issued  to  him 
in  1840  and  re-issued  in  1848.  His  invention  was  prior  to  that 
of  Steinhiel  of  Munich  or  Wheatstone  or  Davy  of  England". 

The  counsel  were  James  Campbell  and  George  Harding  of 
Philadelphia  and  Archer  Gifford  of  New  Jersey  for  Morse,  and 
Ranson  H.  Gillett  of  New  York  and  Salmon  P.  Chase  of  Ohio 
for  O'Reilly.  The  practicability  of  this  great  invention  had  been 
proved  nine  years  before,  in  1844,  by  a  line  put  in  operation  be- 
tween Baltimore  and  Washington,  under  an  appropriation  from 
Congress.  (3) 

The  next  year,  1854,  was  marked  by  the  decision  in  the  case 
of  Seymour  v.  McCormick  (15  Howard  480),  upholding  the 
McCormick  reaper  patents  of  1834,  1845,  and  1847.  The  counsel 
were  Thaddeus  Stevens  of  Pennsylvania  and  Reverdy  Johnson  of 

(1)  Born  in  1792,  Dartmouth  1814. 

(2)  See  also   Wilson  v.   Simpson,  4  Howard  710,  9  Howard    109,    10 
Howard  329. 

(3)  John  Quincy  Adams  says  in  his  diary  May  27,  1844,  "This  was  the 
day  on  which  the  two  Democratic  conventions  to  nominate  candidates  for 
the  offices  of  President  and  Vice  President    .    .  .     were  held  at  Baltimore 
.     .     .     By  the  new  invention  of  the  electro  magnetic  telegraph  of   Pro- 
fessor Morse  the  proceedings  of  those  bodies     .     .     .     were  made  known 
here  at  the  capital  and  announced  as  soon  as  received.'' 

For  interesting  account  of  this  early  telegraph — see  Public  Men  and 
Events,  by  Nathan  Sargent,  Vol.  II  (1875). 


24%  HARVARD  LAW  SCHOOL. 

Maryland  for  McCormick,  and  Ranson  H.  Gillett,  and  Henry  R. 
Selden  of  New  York  for  Seymour.  In  the  same  year  as  the  Dred 
Scott  decision,  (1857)  another  case  involving  this  important 
patent  was  decided — Seymour  v.  McCormick  (19  Howard  96) 
in  which  Edward  M.  Dickerman  and  Reverdy  Johnson  appeared 
for  McCormick  and  H.  R.  Selden,  P.  H.  Watson  and  Edwin  M. 
Stanton  for  Seymour. (i) 

To  the  decade  of  1850-1860  belong  also  the  great  inventions 
of  the  breech  loading  fire  arm,  Elias  Howe's  sewing  machine, 
the  steam  fire  engine  and  the  fire  alarm  telegraph. 

The  leading  American  law  book  on  the  subject  of  patents  was 
published  in  1837  by  Willard  Phillips. 

COPYRIGHT   LAW. 

The  law  of  copyright  was  practically  formulated  by  Judge 
Joseph  Story  in  his  Circuit  Court  decisions  1830-1845, (2)  and  by 
the  United  States  Supreme  Court  in  the  great  case  of  Wheaton 
v.  Peters  (8  Peters  591),  in  1834,  in  which  Elijah  Paine  and 
Daniel  Webster  appeared  for  Henry  Wheaton  (the  former  Su- 
preme Court  Reporter)  and  Charles  J.  Ingersoll  and  John 
Sergeant  for  Richard  Peters  (the  then  Reporter). 

Few  cases  came  before  the  Supreme  Court  on  this  subject — the 
most  important  being  Stevens  v.  Gladding,  in  1854,  (17  Howard 
447)- (3) 

(1)  For  interesting  account  see  Lincoln  as  a  Lawyer,  by  Frederic  Tre- 
vor Hill. 

It  is  interesting  to  note  that  Abraham  Lincoln  acted  as  counsel  for 
McCormick,  with  Reverdy  Johnson  and  Edwin  M.  Dickerman,  against 
Edwin  M.  Stanton  and  George  Harding  in  the  United  States  Circuit  Court 
in  McCdrmick  v.  Manny  (6  McLean  529)  in  1856. 

(2)  See  Gray  v.  Russell,  i   Story  16;  Folsom  v.  Marsh,  2  Story  113 
(1841);  Emerson  v.  Davies,  3  Story  779. 

(3)  It  may  be  noted  that  coincident  with  the  rise  of  copyright  law 
came  the  great  development  of  American  literature  and  American  journal- 
ism.   The  years  1835-1860  witnessed  the  production  of  the  works  of  Emer- 
son,   Hawthorne,    Lowell,    Longfellow,    Prescott,    Motley,    Bancroft,    Hil- 
dreth  and  Whittier. 

The  North  American  Review,  founded  in  1815,  was  still  in  existence. 
The  American  Quarterly  Review  was  published  from  1827  to  1837;  the 
Knickerbocker  Magazine  from  1833  to  1858.  Of  the  great  newspapers  the 
New  York  Herald  was  first  published  in  1835,  yet  by  1846  it  had  a  circula- 
tion of  only  15,000.  The  New  York  Tribune  started  in  1841 ;  the  New 
York  Evening  Post  in  1842  with  a  circulation  of  2,500;  the  Springfield 
Daily  Republican  in  1844. 

"American  Journalism  was  undergoing  the  greatest  transformation  and 
experiencing  the  deepest  inspiration  of  its  whole  history.  The  telegraph 
and  the  Mexican  War  came  in  together  and  the  years  1846-51  were  the 
years  of  most  marked  growth." 


NEW  LAW.  249 

TRADEMARK   LAW. 

Another  branch  of  the  law  which  practically  originated  in  the 
years  1830-1860  was  that  of  trademarks. 

The  first  and  only  trademark  case  in  the  history  of  the  coun- 
try—  (Snoivden  i'.  Noah) — a  motion  in  the  New  York  Court 
of  Chancery  by  the  owner  of  a  newspaper  called  The  National 
Advocate,  for  an  injunction  against  the  owner  of  The  New  York 
National  Advocate,  was  tried  before  Chancellor  Sandford,  in 
January,  1825. 

In  1837,  the  leading  case  of  Thomson  v.  Winchester  was  de- 
cided in  Massachusetts  (19  Pick.  214)  in  which  Theophilus  Par- 
sons and  Charles  Sumner  were  counsel  for  the  defendant.  Chief 
Justice  Shaw  held  that  it  was  a  fraud  to  make  and  sell  medicines 
as  and  for  medicines  made  and  prepared  by  the  plaintiff — this 
decision  being  the  foundation  of  the  law  of  unfair  trade  in  this 
country.  In  1840,  in  Bell  v.  Locke  in  New  York  (18  Paige  75) 
the  court  was  asked  to  enjoin  the  use  of  a  trade  name.  In  1844, 
Judge  Story  in  the  United  States  Circuit  Court  in  Taylor  v.  Car- 
penter (3  Story  458)  granted  the  first  injunction  ever  issued  in 
this  country  restraining  the  infringement  of  a  real  trademark. 
From  that  year,  the  law  may  be  said  to  have  been  definitely  es- 
tablished. The  first  act  for  the  protection  of  trademarks  was 
passed  in  Massachusetts  in  1852  c.  197(1). 

The  list  of  trademark  and  trade  name  cases  between  1845  and 
1860  numbers  thirty-six  (2)  of  which  28  were  decided  in  inferior 
courts  of  New  York,  5  in  United  States  Circuit  Courts,  2  in 
Rhode  Island  and  i  in  Pennsylvania. 

The  law  as  to  trade  names  were  practically  fixed  by  the  noted 
decision  of  Marsh  v.  Billings  in  Massachusetts  in  1851  (7  Cush. 
322).  This  was  an  action  of  trespass  on  the  case  alleging  in- 
juries from  the  use  by  the  defendant  of  the  words  "Revere 
House"  in  transporting  passengers  and  baggage.  The  court 
said: 

The  principle  involved  is  one  of  much  importance  to  the  plaint- 


A  circulation  of  2,000-4.000  copies  was  considered  a  good  number  for  any 
Boston  newspaper. 

In  1841,  Graham's  Magazine  was  first  published;  in  1842  the  Southern 
Quarterly  Review;  and  in  1845  the  American  Review. 

In  1850  Harper's  Monthly  Magazine  was  established;  in  1853  Putnam's 
Monthly  Magazine;  in  i8=;6  Harper's  Weekly;  and  in  1857  the  Atlantic 
Monthly. 

(1)  See  Amer.  v.  King,  2  Gray  382  (1854). 

(2)  Trademark  Cases,  by  Rowland  Cox   (1892). 


250  HARVARD  LAW  SCHOOL. 

iffs  and  to  the  public.  But  the  principle  is  by  no  means  novel 
in  its  demands  .  .  .  substantially  the  same  which  has  been 
repeatedly  recognized  and  acted  on  by  courts  in  regard  to  fraudu- 
lent us  of  trade  marks  and  regarded  as  of  much  importance  in  a 
mercantile  community. 

INDIVIDUALISM    IN   THE   LAW. 

As  before  stated,  this  era  was  especially  characterized  by  the 
increasing  recognition  paid  to  individual  rights  and  the  protective 
safeguards  through  about  the  weaker  classes. 

No  portion  of  the  community  was  more  favored  by  the  de- 
velopment of  the  law  between  1830  and  1860  than  the  debtor 
class. 

INSOLVENCY    AND   BANKRUPTCY    LAWS. 

In  the  argument  of  David  Daggett  in  Sturgis  v.  Crowninshield 
in  1819  it  is  said  that,  "no  acts,  properly  called  bankrupt  laws, 
have  been  passed  in  more  than  four  or  five  States.  Rhode  Island 
had  an  act  ...  (adopted  in  1756)  by  which  the  debtor 
might,  on  application  to  the  Legislature  be  discharged  from  his 
debts.  In  New  York,  a  law  of  the  same  character  has  been  in 
operation  since  the  year  1755,  and  also  in  Maryland  for  a  long 
period,  (since  1774).  In  Pennsylvania,  a  bankrupt  law  operating 
in  the  city  and  county  of  Philadelphia  existed  for  two  or  three 
years ;  and  in  Connecticut,  the  Legislature  has  often  granted  a 
special  act  of  bankruptcy  on  application  of  individuals.  But  in 
all  the  other  States,  these  laws  on  this  subject  have  been  framed 
with  reference  to  the  exemption  of  the  body  from  imprisonment, 
and  not  to  the  discharge  of  the  contract." 

The  first  general  insolvent  law  in  the  United  States  discharging 
the  debts  as  well  as  the  person  of  the  debtor  was  that  of  New 
York  in  1784,  and  later  more  progressive  statutes  had  been  passed 
in  1801,  1811,  1813,  1817  and  1823.  So  undecided,  however,  was 
public  opinion  as  to  the  value  of  such  laws  that,  as  late  as  1819, 
Chancellor  Kent  and  the  judges  of  the  New  York  Supreme  Court 
in  a  report  to  the  Legislature  said  ( i )  : 

Judging  from  their  former  experience  and  from  observation 
in  the  course  of  their  judicial  duties,  they  were  of  opinion  that  the 
insolvent  law  was  the  source  of  a  great  deal  of  fraud  and  per- 

(i)     Kent's  Commentaries,  Vol.  II,  p.  324,  note  b  (ist  Ed.  1827). 


NEW  LAW.  251 

jury.  They  were  apprehensive  that  the  evil  was  incurable  and 
arose  principally  from  the  infirmity  inherent  in  every  such  system 
which  .  .  .  had  a  powerful  tendency  to  render  him  (the 
debtor)  heedless  in  the  creation  of  debt  and  careless  as  to  pay- 
ment .  .  .  and  probably  ever  must  be,  from  the  very  nature 
of  it,  productive  of  incalculable  abuse,  fraud,  and  perjury,  and 
greatly  injurious  to  public  morals. 

Nevertheless,  the  commercial  distresses  due  to  the  financial 
crises  after  the  close  of  the  War  of  1812,  and  during  the  depre- 
ciated currency  period  of  1815  to  1825  caused  constant  pressure 
for  relief  to  the  debtor  class.  The  uncertainty  whether  or  how 
far  the  United  States  Supreme  Court  would  sustain  the  consti- 
tutionality of  State  insolvent  laws  produced  great  confusion  and 
hesitation  in  legislation  until  the  final  decision  of  the  question  in 
Ogdcn  v.  Sounders,  in  1827.  As  Kent  wrote,  in  that  year:  "The 
laws  of  the  individual  States  .  .  .  have  hitherto  been  un- 
stable and  fluctuating,  but  they  will  probably  be  redigested  and 
become  more  stable  since  the  decisions  of  the  Supreme  Court 
have  at  least  defined  and  fixed  the  line  around  the  narrow  in- 
closure  of  State  jurisdiction."(i) 

So  progressive  a  State  as  Massachusetts,  however,  had  no  in- 
solvency law  until  as  late  as  1838 ;  but  an  antique  and  complicated 
system  of  assignments  for  benefit  of  creditors  had  prevailed  for 
many  years,  which  in  its  workings  had  proved  most  unjust  and 
productive  of  fraud. (2)  Creditors  raced  for  the  property  of 
their  debtor ;  a  general  assignment  protected  only  those  creditors 
who  assented  to  it ;  and  fraudulent  assignments  intended  to  bene- 
fit the  debtor  rather  than  to  protect  his  creditors  were  the  rule. 

In  1831,  Charles  Jackson,  Samuel  Hubbard  and  John  B.  Davis 
were  appointed  Commissioners  to  consider  the  subject  of  an  in- 
solvent law  and  they  prepared  a  draft.  For  seven  years,  how- 
ever, the  Legislature  failed  to  take  any  favorable  action.  After 
the  great  financial  panic  of  1837,  the  general  distress  among  debt- 
ors was  so  great  that  the  State  enacted  this  law,  which  proved  so 
excellent  and  so  liberal  that  it  served  as  a  model  for  similar  acts 
in  other  States  and  for  future  United  States  bankruptcy  statutes. 

By  1845.  most  of  the  States  had  enacted  insolvent  laws;  but 
there  was  great  diversity  in  the  extent  to  which  these  laws  were 


(1)  Kent's  Commentaries,  Vol.  II,  p.  326,  note  a  (ist  Ed.  1827). 

(2)  See   for   graphic   description   of  actual  conditions,   Law  Reporter, 
Vol.   II    (1839)- 


252  HARVARD  LAW  SCHOOL. 

operative.  Thus  in  Maine,  New  Hampshire,  Virginia,  and  Ken- 
tucky, they  were  confined  to  debtors  charged  on  execution.  In 
New  Jersey,  Delaware,  Maryland,  Tennessee,  North  Carolina, 
South  Carolina,  Georgia,  Alabama,  Mississippi,  and  Illinois,  they 
extended  only  to  debtors  in  prison  on  mesne  or  final  process.  In 
New  York,  Massachusetts,  Connecticut,  Rhode  Island,  Pennsyl- 
vania, Ohio,  Indiana,  Missouri,  and  Louisiana,  they  extended 
generally  to  debtors  in  or  out  of  prison. 

In  some  of  these  States,  like  New  Jersey,  Connecticut,  Ohio, 
and  others,  the  laws  were  insolvent  laws  in  the  old  technical 
meaning  of  the  term  i.  e.  laws  discharging  the  debtor  from  im- 
prisonment only.  In  other  States,  like  Massachusetts,  New  York 
and  others,  these  laws  though  termed  insolvent  were  really  bank- 
rupt laws,  in  that  they  discharged  the  debt  itself. (i) 

Kent  thus  described  the  confused  condition  as  late  as  1840: 

The  Commissioners  appointed  to  revise  the  civil  code  in  Penn- 
sylvania, in  their  Report  in  Jan.,  1835,  complain  in  strong  terms 
of  the  existing  state  of  things.  Congress  will  not  exert  their 
constitutional  power  and  pass  a  bankrupt  law,  and  no  State  can 
pass  a  bankrupt  or  insolvent  law  except  so  far  as  regards  its  own 
citizens ;  and  even  then,  only  in  relation  to  contracts  made  after 
the  passage  of  the  law.  Foreign  creditors  and  creditors  in  other 
States  cannot  be  barred,  while  State  creditors  may  be.  The 
former  preserve  a  perpetual  lien  on  after  acquired  property  ex- 
cept so  far  as  the  statutes  of  limitations  interpose.  State  bank- 
rupt and  insolvent  laws  cannot  be  cherished  under  such  inequali- 
ties. 

I 

It  was  to  remedy  this  condition  of  affairs  that,  after  a  thirty 

years'  struggle,  Congress  finally  enacted  the  National  Bankruptcy 
Law  in  1841,  which  went  into  effect  Feb.  i,  1842,  and  was  re- 
pealed in  1843.  It  was  however  much  more  extended  in  its  pro- 
visions than  the  earlier  National  Bankruptcy  Law  of  1800  and 
than  the  English  bankruptcy  acts,  as  it  was  not  confined  to  "trad- 
ers" and  also  included  cases  of  voluntary  application.  (2) 

The  enactment  of  this  law  was  largely  due  to  the  great  dis- 
tress following  the  panic  of  1837  and  President  Tyler's  veto  of 
the  Bank  Act.  There  had  been  tremendous  expansion  of  credit 
and  speculation  by  private  individuals  as  well  as  by  the  States 

(1)  See  Kent's  Commentaries,  Vol.  II,  p.  394,   (5th  Ed.  1844). 

(2)  See  Grisii'old  v.  Pratt,  9  Mete.  16   (1845)    for  a  good  description 
of  the  history  of  bankruptcy  and  insolvency  legislation  and  the  reasons  for 
and  against  it  in  the  United  States  and  in  Massachusetts. 


NEW  LAW.  253 

themselves,  especially  in  the  South  and  West.  The  rage  for  rail- 
road building,  1830-1840,  and  the  numerous  subscriptions  by 
means  of  State  stock  and  bond  issues  made  by  the  States  to  in- 
duce railroad  construction  had  piled  up  State  debts  to  such  an 
extent  that  many  States  had  repudiated  their  obligations.  ( I ) 

In  this  period,  the  position  of  the  debtor  class  was  still  further 
alleviated  by  the  gradual  adoption  of  statutes  abolishing  the  old 
harsh  system  of  imprisonment  for  debt.  (2)  Such  imprisonment 
had  already  been  abolished  outright  by  Kentucky  in  1821  and  by 
New  York  in  1831.  Four  States,  Maine,  New  Hampshire,  Mass- 
achusetts and  South  Carolina  soon  abolished  imprisonment  for 
debts  of  sums  less  than  $5  to  $30.  Statutes  practically  abolish- 
ing imprisonment  for  debt  were  passed  in  Vermont,  Ohio  and 
Michigan  in  1838,  in  Alabama  in  1839,  in  New  Hampshire  and 
Tennessee  in  1840,  in  Pennsylvania  and  Connecticut  in  1842.  By 
the  year  1857,  when  Massachusetts  by  statute  provided  that,  "im- 
prisonment for  debt  except  in  cases  of  fraud  is  hereby  abolished 
forever",  practically  all  the  States  had  enacted  this  relief  to 
debtors.  (3) 

Another  step  in  advance  for  the  protection  of  debtors  was  the 
enactment  of  homestead  laws  exempting  from  execution  a 
homestead  for  the  shelter  and  protection  of  the  family  occupy- 
ing it.  The  first  of  these  liberal  statutes  was  passed  by  the  Re- 


(1)  The  first  instance  of  the  use  of  the  term  "repudiation"  was  in  an 
official  message  of  the  Governor  of  Mississippi  advising  this  course.     In 
I853>   by  decision    of   the    Supreme    Court   of  the    State,    Mississippi    was 
forced  to  pay  its  repudiated  bonds.     See  Law  Reporter,  Vol.  XVI. 

See  also  Repudiation,  by  Benjamin  R.  Curtis — North  Amer.  Rev., 
January,  1844. 

As  George  Ticknor  wrote  May  30,  1842 : 

"Large  portions  of  the  country  are  suffering.  At  the  South  and  South- 
west where  individuals  and  States  borrowed  rashly  and  unwisely  there  is 
great  distress.  To  individuals  the  Bankrupt  Law  is  bringing  appropriate 
relief.  But  to  States  the  process  must  be  more  slow.  Some  of  them  like 
Illinois  and  Indiana  never  will  pay.  They  have  not  the  means  and  cannot 
get  the  means.  They  are  honest  and  hopeless  bankrupts  and  will  do  what 
they  can.  Others  like  Mississippi  which  repudiate  its  obligations  so 
shamelessly  will  be  compelled  to  pay  by  the  force  of  public  opinion.  .  .  . 
The  lesson  will  have  been  an  useful  one." 

(2)  Kent  wrote  in  his  Commentaries,  in  1827:   "The  power  of  imprison- 
ment for  debt  in  cases  free  from  fraud  seems  to  be  fast  going  into  an- 
nihilation  in   this   country,   and   is   considered   as   repugnant   to  humanity, 
policy  and  justice." 

The  constitutionality  of  State  laws  abolishing  imprisonment  for  debt 
was  upheld  in  Mason  i'.  Haile,  12  Wheat  370,  in  1827. 

(3)  See  McMaster's  History  of  the  United  States,  Vol.  VI. 
See  Imprisonment  for  Debt,  by  Asa  Kinne   (1842). 

Kent's  Commentaries,  Vol.  II,   (5th  Ed.  1844). 


254  HARVARD  LAW  SCHOOL. 

public  of  Texas  in  1836;  the  next,  by  Vermont  in  1849.  Most  of 
the  other  States  soon  enacted  such  laws.  ( i ) 

But  it  was  not  only  by  statutes  that  the  law  showed  its  tender 
side  towards  debtors.  The  trend  of  judicial  decision  was  dis- 
tinctly favorable  to  them. 

Thus  Kent  in  1844  said  (2)  : 

In  noting  the  vacillating  and  contradictory  decisions  on  the 
point  of  the  validity  of  voluntary  gifts  and  conveyances  of  prop- 
erty by  persons  indebted  at  the  time,  it  is  painful  to  perceive,  in 
so  many  instances,  the  tendency  to  a  lax  doctrine  on  the  subject. 
The  relaxation  goes  to  destroy  conservative  principles  and  to 
commit  the  sound,  wholesome  and  stern  rules  of  law  to  the  popu- 
lar disposal  and  unstable  judgment  of  jurors. 

Another  instance  of  the  tenderness  of  the  new  law  towards 
the  interests  of  debtors  is  to  be  seen  in  the  growth  of  the  doctrine 
of  implied  warranties  on  sales  of  personal  property — a  develop- 
ment which  Kent  said, (3)  "trenched  deeply  upon  the  plain  maxim 
of  the  common  law,  caveat  emptor;  and  I  cannot  but  think  that 
the  old  rule  and  the  old  decisions  were  the  safest  and  widest 
guides ;  and  that  the  new  doctrine.  .  .  .  will  lead  to  much 
difficulty  and  vexatious  litigation  in  mercantile  business." 

In  still  another  form,  the  debtor  was  protected  through  the 
relaxation  by  the  courts  of  Massachusetts  and  of  several  other 
States  of  the  old  English  law  that  a  sale  of  chattels  without 
delivery  was  conclusive  evidence  of  fraud  upon  creditors. 

"This    tendency",    said    Kent,    "is    greatly    to    be    regretted. 

.  .  .  Since  the  remedy  against  the  property  of  the  debtor 
is  now  almost  entirely  deprived  of  the  auxiliary  coercion  intended 
by  the  arrest  and  imprisonment  of  his  person,  the  creditor's 
naked  claim  against  the  property  ought  to  receive  the  most  effec- 
tive support  and  every  rule  calculated  to  prevent  the  debtor  from 
secreting  or  masking  it  to  be  sustained  with  fortitude  and  vigor." 

LABOR  LAW. 

The  bare  rudiments  of  legal  protection  to  a  class  which  had 
hitherto  received  little  protection  from  the  law — the  laboring 
class — developed  in  this  era,  although  even  by  1860  very  slight 


(1)  Law  of  Homestead,  by  Seymour  D.  Thompson. 

(2)  Kent's  Com.,  Vol.  II,  p.  442  note,  (5th  Ed.  1844). 

(3)  Kent's  Com.,  Vol.  II,  p.  479  note,  (sth  Ed.  1844). 


NEW  LAW.  255 

recognition  to  the  rights  of  the  laborer  had  been  shown  by  the 
courts. 

Three  early  cases  in  inferior  courts  in  New  York  and  Pennsyl- 
vania^) had  held  that  associations  of  workingmen  to  raise  prices 
or  wages  were  illegal  in  themselves ;  but  this  stringent  Common 
Law  doctrine  was  overturned  in  Pennsylvania  as  early  as  1821  in 
Com.  7-.  Carlisle  (Brightley's  Reports  36)  ;  and  in  the  great  lead- 
ing case  of  Com.  v.  Hunt  in  Massachusetts  in  1842  (4  Mete.  14). 
This  case  involved  the  legality  of  the  acts  of  the  labor  organiza- 
tion of  the  Journeymen  Bootmakers  Society,  and  was  argued  by 
Attorney  General  James  T.  Austin  against  Robert  Rantoul,  Jr. 
Chief  Justice  Shaw  delivered  one  of  his  greatest  opinions,  up- 
holding the  right  of  laborers  to  combine  for  proper  purposes 
without  being  liable  to  indictment  for  criminal  conspiracy.  A 
case  in  New  York,  in  1835,  arising  under  a  special  statute  had 
been  decided  to  the  contrary — People  z\  Fisher  (14  Wendell 

I). (i) 
An  earlier  labor  case  in  Massachusetts,  in  1827, — Boston  Glass 

Manufacturing  v.  Binney  (5  Pick.  425)  argued  by  William  Sulli- 
van and  Samuel  Hubbard  against  Lemuel  Shaw  had  involved 
the  question  of  liability  for  enticing  workmen  from  the  plaintiff's 
employ. 

These  cases  and  those  cited  in  the  notes  were  practically  all 
the  labor  cases  in  the  country  which  occurred  prior  to  1867. (2) 

MARRIED   WOMEN. 

The  change  in  the  attitude  of  the  law  during  this  period 
towards  the  status  and  rights  of  married  women  was  very  re- 
markable. 

The  first  liberal  step  in  breaking  down  the  harsh  Common  Law 
doctrine  as  to  the  legal  identity  of  husband  and  wife  was  in 
Mississippi,  in  1839,  by  the  passage  of  a  statute  allowing  to  a  wife 

1 i )  Boot  and  Shoemakers  of  Philadelphia.     See  Pamphlet  Report  in 
1806. 

People  i".  Melvin,  2  Wheeler's  Criminal  Cases  262  (N.  Y.),  in  1824. 
Journeymen   Cordwainers  of  Pittsburg.     See   Pamphlet  Report   in   l8it. 
Journeymen  Cordwainers  of  New  York,  in   1810.     See  Sampson's  Dis- 
course, by   Pishey  Thompson    (1826). 

(2)  See  also  Journeyman  Tailors  of  Philadelphia.     See  Phamphlet  Re- 
port   (1827). 

Hartford  Carpet  Weavers.     See  Pamphlet  Report   (1836). 

(3)  See    Bou'en    v.    Mathcson,    (14    Allen    499)    in    Massachusetts,    in 
1867;  and  Stevedore's  Association  r.  li'alsh   (2  Daly  i)  in  New  York,  in 
1867. 


256  HARVARD  LAW  SCHOOL. 

separate  ownership  of  property.  Massachusetts  followed,  in  1845, 
by  an  act  authorizing  a  married  woman  to  hold  property  to  her 
separate  use  by  express  ante-nuptial  agreement(i)  ;  and  by 
statutes  in  1855  and  1857  in  that  State,  the  rights  of  married 
women  were  extended  so  as  to  give  them  unrestricted  authority 
to  hold  property,  to  contract,  to  convey  and  otherwise  to  act  like 
a  feme  sole. 

Between  1844  and  1860,  twenty-one  States  had  enacted  similar 
legislation,  although  few  of  them  had  granted  as  great  freedom 
to  the  wife  as  had  Massachusetts.  (2)  The  first  American  law 
book  on  the  subject,  since  Judge  Tapping  Reeve's  book  on  Do- 
mestic Relations,  appeared  in  1861 — William  H.  Cord's  Treatise 
on  Legal  and  Equitable  Rights  of  Married  Women.  As  late  as 
1871,  Bishop  in  his  Law  of  Married  Women  says:  "No  first  class 
text  book  has  ever  been  written  upon  the  subject." (3) 

CRIMINAL    LAW. 

The  chief  advances  in  criminal  law  during  this  period  were 
in  the  abolition  of  the  death  penalty  for  many  crimes ;  the  reform 
and  amelioration  in  the  sentences  and  in  the  methods  of  treat- 
ment in  prisons  and  reformatories;  and  the  change  in  the  law 
of  evidence  giving  the  defendant  the  right  to  testify. 

Among  the  new  doctrines  of  criminal  law  established  by  the 
courts,  the  one  of  chief  importance  was  the  settlement  of  the  law 
as  to  insanity  as  a  defence — in  England  by  McNaughten's  Case 
in  the  House  of  Lords  in  1843(4) — in  the  United  States  by  two 


(1)  See  Beal  v.  Warren,  2  Gray  457   (1854). 

(2)  For  a  history  of  the  spread  of  legislation  of  this  nature,  see  Bis- 
hop's Law  of  Married  Women,  Vol.  II    (1875);    Willard  v.  Eastham,   15 
Gray  (1860);  and  Lord  v.  Parker,  3  Allen  129  (1861). 

(3)  The   only  books  other   than   the   above   written   previous   to    1871 
on   the  subject  were  as  follows — all   English: 

Baron  and  Feme  (1700). 

Law  of  Marriage  and  other  Family  Settlements,  by  Edward  G.  Ather- 
ley  (1813). 

Essay  on  Equitable  Rights  of  Married  Women,  by  James  Claney 
(1819). 

Law  of  Property  arising  from  Relation  of  Husband  and  Wife,  by  R.  S. 
Donniston  Roper  (1820). 

Rights  and  Liabilities  of  Husband  and  Wife  at  Law  and  in  Equity,  by 
John  F.  MacQueen  (1849). 

Law  of  Property  as  arising  from  the  Relation  of  Husband  and  Wife, 
by  S.  S.  Bell  (1849). 

(4)  Even  as  late  as  1827  Lord  Tenterden  had  said  in  Brown  v.  God- 
rail   (3  Carr.  and  Payne  30)   that  "No  person  can  be  suffered  to  set  up 
his  own  lunacy  .as  a  defense"  in  a  civil  action. 

See  also  article  on  Insanity,  in   Western  Jurist,  Vol.  IV. 


NEW  LAW.  257 

famous  cases ;  one  in  Massachusetts  in  1844,  Com.  v.  Rogers  (7 
Mete.  50),  G.  T.  Bigelow  and  G.  Bemis  being  counsel  and 
Chief  Justice  Shaw  delivering  one  of  his  most  notable  opinions ; 
the  other  in  New  York  in  1847,  People  v.  Freeman  (4  Denio  29) 
in  which  William  H.  Seward  established  his  legal  reputation  by 
his  brilliant  defence  of  the  insane  negro  defendant. 

LAW  OF  EVIDENCE. 

Perhaps  one  of  the  most  necessary  revolutions  in  the  old  Com- 
mon Law  doctrines  brought  about  in  this  period  was  the  great 
reform  in  the  law  of  evidence — especially  in  the  removal  of  the 
rules  which  barred  a  witness  from  testifying  because  of  interest, 
and  because  of  being  a  party. 

The  old  Common  Law  bar  of  interest  had  become  absurd  in 
its  application  to  modern  trials.  It  resulted  in  many  instances 
in  the  complete  exclusion  of  the  truth  as  to  the  facts  of  a  case. 
In  other  instances,  it  was  a  direct  inducement  to  fraud,  as  persons 
desired  as  witnesses,  and  likely  to  be  excluded  on  grounds  of  in- 
terest made  releases  of  their  interest  before  the  trial,  only  to 
receive  a  regrant  of  the  interest  so  released,  after  the  trial  was 
over.  In  many  directions  the  Legislature  had  removed  the  bar, 
quite  illogically,  as  to  certain  classes  of  witnesses. 

The  reform  in  this  direction  had  started  in  England  in  1843  m 
Lord  Denman's  Act,  which  abrogated  the  disability  of  a  witness 
for  interest  or  infamy.  This  Act  was  spoken  of  by  the  Law  Re- 
porter in  1844  (Vol.  VI)  "as  justly  regarded  as  the  greatest  inno- 
vation of  the  day",  and  termed  by  Brougham  "the  greatest  meas- 
ure under  the  head  of  judicial  procedure  since  the  Statute  of 
Frauds".  New  York  followed  this  with  an  act,  in  1846,  remov- 
ing the  bar  of  religious  incapacity  from  witnesses,  and,  in  1848, 
the  bar  of  interest.  Connecticut  passed  a  similar  act  in  1848. 

One  further  step  remained  to  be  taken — the  removal  of  the 
unreasonable  disqualification,  as  witnesses,  of  parties  to  the  suit. 
This  reform  was  bitterly  antagonized  by  the  Bar  for  many  years, 
chiefly  on  the  ground  that  it  would  be  a  tremendous  inducement 
to  perjury.  England  again  led  the  way  by  the  passage  of  Lord 
Brougham's  Act  in  1850. (i) 

By  statute  of  1851  known  as  the  Practice  Act  (substantially 

(i)     See  article  on  Lau'  of  Evidence  in  Southern  Law  Review,  N.  S. 

(1875)- 

Disqualification    of    Parties   as    Witnesses    in    American    Laiv    Register, 
Vol.  V   (1856-57)    saying, 
17 


258  HARVARD  LAW  SCHOOL. 

a  Code  of  Civil  Procedure),  Massachusetts  allowed  the  filing  of 
interrogatories  to  parties  to  a  suit  and  abolished  the  bar  of  inter- 
est and  infamy.  In  1853,  Ohio  adopted  in  full  the  provisions  of 
Lord  Brougham's  act.  Connecticut  followed  suit  in  1854 ;  Mass- 
achusetts, in  1856;  and  New  York,  in  1857. 

In  1864,  Maine  became  a  leader  in  this  department  of  the  law 
by  allowing  defendants  in  criminal  cases  to  testify.  Massachu- 
setts soon  passed  a  similar  statute  in  1866,  and  New  York,  in 
1867.  Gradually  this  reform  became  general  over  the  United 
States.(i) 

It  would  be  interesting  to  trace  the  effect  on  the  doctrines  of 
substantive  law,  of  this  exclusion  from  the  witness  stand  of  par- 
ties who  had  the  chief  and  the  best  knowledge  of  the  facts  in  con- 
flict. That  the  substantive  law  was  considerably  moulded  by  the 
conditions  imposed  by  this  rule  of  evidence,  there  can  be  no  ques- 
tion. The  subject  may  be  a  fruitful  one  for  some  writer  of  legal 
history.  (2) 

LAW   REFORM. 

This  period  was  peculiarly  one  of  Codification  and  statutory 
revision,  due  to  influences  which  produced  an  ardent  agitation  of 
these  reforms  in  the  fifteen  years  prior  to  1830.  These  influences 
were ;  the  hostility  in  the  United  States  towards  the  English  Com- 

"We  rejoice  to  see  the  spirit  of  reform  is  at  work." 

See  a  brilliant  and  interesting  series  of  articles  in  American  Jurist  Vols. 
I  to  XIII  (1829-1835)  advocating  these  changes  in  the  law  of  evidence. 
See  also  article  in  1851  in  the  Law  Reporter,  Vol.  XIV;  and  also  articles 
in  the  same  volume  explaining  the  workings  of  the  new  English  Act  of 
1850. 

(1)  See  A   Chapter  of  Legal  History,  by  James  B.  Thayer,  Harvard 
Law  Review,  Vol.  IX   (1895). 

(2)  A  minor  illustration  may  be  given  of  the  results  of  this  rule  of 
evidence  as  applied  to  the  development  of  modern  economic  conditions. 
In  1846,  when  railroad  law  was  being  formulated  every  day  in  the  courts, 
as  a  new  branch  of  law,  a  plaintiff  failed  to  recover  against  a  railroad 
company  for  loss  of  his  baggage  due  to  the  railroads  negligence,  simply 
on  the  ground  that  he  alone  knew  what  was  in  his  trunk  and  yet  he  was 
barred  from  testifying,  because  a  party.     The  court  said: 

"The  question  whether  the  plaintiff  was  a  competent  witness  is  of 
much  practical  importance  to  the  community,  as  in  consequence  of  the 
facilities  for  traveling,  the  passenger  travel  is  constantly  on  the  increase 
and  railroad  companies  being  carriers  of  passengers  and  baggage  arc 
liable  by  the  rules  of  common  law  for  losses.  .  .  .  But  the  law  of 
evidence  is  not  of  a  fleeting  character." 

To  counteract  this  decision  (Snow  v.  Eastern  R.  R.  Co.,  12  Mete.  44) 
the  Legislature  of  Massachusetts  was  compelled  by  public  opinion  to  pass 
an  act  (St.  1851  c.  147)  allowing  a  passenger  to  put  in  evidence  his  own 
schedule  or  written  descriptive  contents  of  his  trunk  [See  Harlow  v. 
Fitchburg  R.  R.,  8  Gray  237  (1857)]. 


NEW  LAW.  259 

mon  Law ;  the  prejudice  against  special  pleading,  as  the  great 
bulwark  of  the  exclusive  pretensions  of  the  lawyer  class ;  the  suc- 
cess of  the  Code  Napoleon  in  France ;  the  increasing  multiplicity 
of  law  reports;  and  the  powerful  and  spreading  effect  of  the 
doctrines  of  Jeremy  Bentham,  especially  through  the  works  of  his 
disciple  in  the  United  States,  Edward  Livingston. 

The  first  step  towards  Codification  was  taken  by  New  York 
in  its  Revised  Statutes  of  1828,  which  entirely  reconstructed  the 
law  of  Real  Property  and  other  topics.  In  1833-34,  Salmon  P. 
Chase  published  a  remarkably  able  Revision  of  the  Statutes  of 
Ohio. 

In  1834-36,  Pennsylvania  revised  its  statutes,  so  thoroughly 
as  practically  to  construct  a  Civil  Code.  In  1835,  Massachusetts 
enacted  its  Revised  Statutes,  which  served  as  a  model  for  many 
other  States  in  succeeding  years.  The  original  Commission  ap- 
pointed for  this  revision  consisted  of  ex-Professor  Asahel 
Stearns,  Professor  John  Hooker  Ashmun,  and  ex-Judge  Charles 
Jackson.  The  next  year,  1836,  Massachusetts  enacted  a  radical 
statute  abolishing  all  special  pleading;  and  in  the  same  year,  at 
the  initiative  of  Governor  Edward  Everett,  a  Commission  was 
appointed,  consisting  of  Judge  Story,  Professor  Greenleaf, 
Theron  Metcalf,  Charles  E.  Forbes  and  Luther  S.  dishing  to 
report  on  the  expediency  of  reducing  into  a  Code  the  Common 
Law  of  Massachusetts.  It  reported  favoring  a  codification  of 
certain  topics ;  and  in  1837  another  Commission  was  appointed 
to  report  a  Criminal  Law  Code.  Part  of  such  a  Code  was  pre- 
pared but  was  never  adopted  by  the  Legislature. 

In  1839,  David  Dudley  Field  began  in  New  York  his  agitation 
for  radical  Code  Reform ;  and  in  1846,  the  new  Constitution  of 
New  York  made  provision  for  two  Commissions  for  this  pur- 
pose. In  1849,  a  Commission  consisting  of  Field,  William  C. 
Noyes  and  Alexander  Bradford  reported  a  sweeping  Civil  Code 
which  failed  of  adoption  in  that  State,  although  it  was  adopted 
by  other  States,  after  1865. 

In  1848,  however,  the  New  York  Code  of  Civil  Procedure,  re- 
ported by  a  Commission  consisting  of  Field,  David  Graham  and 
Asphaxed  Loomis, — a  measure  "undoubtedly  the  greatest  innova- 
tion upon  the  Common  Law  which  was  ever  effected  by  a  single 
statute"  was  enacted.  Within  five  years,  similar  Civil  Codes  based 
upon  this  statute  were  enacted  in  seven  other  States.  In  1851, 
Massachusetts  enacted  its  Practice  Act  which  in  many  respects 

The  New  York  Code  of  Procedure,  by  Joseph  S.  Auerbach  (1877). 


2<5o  HARVARD  LAW  SCHOOL. 

changed  the  old  law  as  completely  as  did  the  New  York  Code, 
although  in  a  limited  direction.  ( I ) 

AMERICAN  LAW  BOOKS   1830-1860. 

This  period  was  one  of  great  activity  and  of  splendid  produc- 
tiveness by  the  American  law  writers.  Chief,  of  course,  of  all 
legal  works  were  the  great  series  of  commentaries  on  the  law 
written  by  Judge  Story  and  which  appeared  as  follows :  Bail- 
ments (1832);  Constitutional  Laiv  (1833);  Conflict  of  Laws 
(1834)  ;  Equity  Jurisprudence  (1836)  ;  Equity  Pleading  (1838)  ; 
Agency  (1839)  >  Partnership  (1841)  ;  Bills  of  Exchange  (1843). 

Other  works  of  enduring  importance  may  be  mentioned  as  fol- 
lows, (though  no  attempt  is  made  to  give  a  complete  list). 

In  1832,  appeared  Angell  and  Ames  on  Corporations — the  first 
American  work  on  this  subject;  and  in  the  same  year.  Judge 
James  Gould  of  the  Litchfield  Law  School  published  his  famous 
book  on  Pleading. 

In  1838,  Francis  Hilliard  published  his  Real  Property  which 
largely  replaced  Cruise's  Digest  with  American  lawyers. (i) 

In  1837,  Timothy  Walker  published  his  Introduction  to  Ameri- 
can Law,  which  for  many  years  was  used  at  a  text  book  for 
American  law  students.  In  the  same  year,  Willard  Phillips  pub- 
lished the  first  complete  book  on  Patents. 

In  1839,  appeared  Bouvier's  famous  Law  Dictionary. 

In  1842,  came  the  first  volume  of  Greenleaf  on  Evidence. 

In  1847,  Sedgwick  on  Damages  appeared — the  first  book  on 
the  subject  in  the  whole  history  of  law  excepting  only  a  "slender 
and  shadowy  book  of  Sayers  (London  I77o)."(i) 

Historical   Development    of    Code    Pleading,   by    Charles    M.    Hepburn 

(1897)- 

The  Common  Laiv,  by  Charles  P.  Dale,  (1896). 

Life  and  Services  of  Salmon  P.  Chase,  by  J.  W.  Shuckers  (1874). 

David  Dudley  Field  and  his  Work,  in  A7.  Y.  Bar  Assn.  Proc.,  Vol. 
XVIII. 

A  Century  of  Judge  Made  Laiv,  by  W.  B.  Hornblower  in  Col.  Law 
Rev.,  Vol.  VII  (1907). 

Law  Reform  in  the  United  States  and  its  Influence  Abroad,  by  D.  D. 
Field  in  Amer.  Law  Rev.  Vol.  XXV  (1891). 

Revised  Code  of  Pennsylvania,  Amer.  Quart.  Rev.  Vols.  XIII  .and  XIX 
(1833-36). 

Revision  of  the  Laws  of  Massachusetts,  Amer.  Jurist,  Vol.  XVII  (1835). 

See  also  Articles  on  Law  Reform  in  Amer.  Jurist  Vols.  XV,  XVI  and 
XVII;  Law  Reporter,  Vols.  XI,  XII,  XIII,  XVIII,  XIX,  XXV. 

See  also  articles  as  to  the  early  agitation  for  Codification  in  North 
Amer.  Rev.  Vols.  VII,  VIII,  XV,  XVII,  XVIII,  XX,  XIX,  XXII, 
XXIV ;  and  in  Amer.  Quart.  Rev.,  Vols.  I,  VI. 

(i)     See  review  in  Law  Reporter,  Vol.  IX. 


NEW  LAW.  261 

In  1849.  appeared  Angel  I  on  Carriers,  the  first  book  to  treat  of 
the  subject  of  railroads. 

In  1853,  Professor  Theophilus  Parsons  of  the  Harvard  Law 
School  issued  his  famous  work  on  Contracts;  and  in  1856,  his 
Elements  of  Mercantile  Law,  and  in  1859,  his  Maritime  Law. 

In  1857,  came  the  first  book  devoted  to  Railway  Law,  Edward 
L.  Pierce's  American  Raihvay  Law — "the  first  book  of  the  kind 
on  a  subject  of  increasing  interest,"  said  the  Law  Reporter  (Vol. 
XX)  ;  and  the  next  year,  1858,  Judge  Redfield  issued  his  valuable 
book  on  Railways. (i) 

In  1857,  Causten  Browne's  Statute  of  Frauds  was  published — 
the  first  book  on  the  subject  since  Roberts'  in  England,  fifty  years 
before. 

In  1860,  Emory  Washburn,  Professor  at  the  Harvard  Law 
School  published  his  Real  Property.  (2) 

A  group  of  three  law  books  of  great  importance  in  their  time 
were  devoted  to  a  legal  topic,  now  happily  obsolete — the  law  of 
slavery :  A  Practical  Treatise  on  the  Law  of  Slavery  by  Jacob  D. 
Wheeler,  issued  in  1837;  Law  of  Freedom  and  Bondage  in  the 
United  States,  by  John  C.  Kurd,  and  Law  of  Negro  Slavery  in 
the  United  States,  by  T.  R.  R.  Cobb,  the  two  latter  books  appear- 
ing in  1858,  only  four  years  before,  by  the  emancipation  of  the 
slaves,  all  books  of  law  on  the  subject  became  unnecessary. 

It  may  be  of  interest  to  note  that  several  legal  magazines  flour- 
ished during  this  period;  the  American  Jurist,  at  Boston,  from 
1829  to  1842;  the  Law  Reporter,  at  Boston,  from  1838  to  1866; 
the  United  States  Law  Intelligencer  and  Review  at  Providence, 
from  1829  to  1832  ;  the  Western  Law  Journal,  at  Cincinnati,  from 
1843  to  1853 ;  the  American  Law  Register,  at  Philadelphia,  from 
1852  to  1861  (Old  Series)  ;  and  the  American  Law  Magazine  at 
Philadelphia  from  1843  to 


An  article  in  American  Law  Register,  Vol.  II,  in  1853-54,  on  the  case 
of  Hadley  z:  Baxendale,  treats  the  law  of  damages  as  a  new  branch  of 
law,  saying : 

"Among  the  interesting  questions  which  are  daily  arising  in  our  courts 
of  law  we  may  certainly  rank  those  which  relate  to  the  measure  of  dam- 
ages awarded  to  the  successful  party  in  an  action." 

(1)  In   1851,  a  collection  of  The  Railroad  Laws  and  Charters  of  the 
United  States  had  been  issued — see  review  in  Law  Reporter,  Vol.  XIV. 

(2)  In  a  review  of  Vol.  II  of  this  work,  published  in   1862,  the  Law 
Reporter   (Vol.  XXV)   quotes  the  London  Law  Magazine  and  Laiv  Re- 
view as  saying: 

"We  envy  our  American  brethren  the  possession  of  such  a  work  for 
we  have  none  like  it." 


CHAPTER  XXXVI. 
THE  WAR  PERIOD  1860-1869. 

As  the  "Irrepressible  Conflict"  drew  nearer  and  nearer,  not 
only  the  students  but  also  the  Professors  of  the  Law  School  took 
an  active  interest  in  the  politics  of  the  day;  and  in  December, 
1860,  all  three  Professors  joined  in  the  futile  attempt  to  avert  the 
threatened  disruption  of  the  Nation,  through  the  movement  for 
the  repeal  of  the  so-called  "Personal  Liberty  Laws"  of  Massa- 
chusetts and  other  Northern  states. 

The  enactment  of  these  Personal  Liberty  Laws  had  resulted 
from  a  dictum  in  Judge  Story's  opinion  in  Prigg  v.  Pennsylvania 
(16  Peters  539),  in  1842;  "that  State  magistrates  may,  if  they 
choose,  exercise  that  authority  unless  prohibited  by  State  legisla- 
tion",— the  .authority  referred  to  being  to  assist  in  the  execution 
of  the  Federal  Fugitive  Slave  Act  of  1793. 

Acting  on  this  intimation,  statutes  were  passed  in  Massachu- 
setts in  1843  and  in  various  other  States,  prohibiting  the  judges, 
sheriffs,  and  other  State  officers  from  arresting  or  aiding  in  the 
arrest  or  imprisonment  of  any  person  claimed  as  a  fugitive  slave. 
After  the  passage  of  the  Fugitive  Slave  Act  of  1850,  and  owing 
to  the  excitement  caused  by  the  arrests  of  fugitive  slaves  in 
Massachusetts,  and  especially  by  the  action  of  Judge  Edward  G. 
Loring,  that  State  passed  an  act,  in  1855,  prohibiting  any  judicial 
or  civil  officer  and  any  member  of  the  militia  in  the  State,  from 
participating  in  any  way  in  the  arrest  or  imprisonment  of  any 
person  claimed  or  adjudged  a  fugitive.  The  act  also  provided  a 
trial  by  jury  in  the  State  courts  and  the  privileges  of  a  writ  of 
habeas  corpus  to  all  such  persons — provisions  which  were  in  di- 
rect conflict  with  the  Federal  Law.  In  1858,  the  militia  was  ex- 
empted from  this  prohibition;  but  in  1859,  the  Legislature  still 
further  interfered  with  the  execution  of  the  process  of  the  United 
States  Courts,  by  authorizing  or  requiring  the  State  judges  to 
issue  a  writ  of  habeas  corpus  commanding  the  sheriff  to  take  the 
person  claimed  as  a  fugitive  out  of  the  custody  of  the  person  or 
officer  holding  him. 

Many  prominent   Northern  men  deemed   such  legislation  an 


WAR  PERIOD.  263 

unnecessary  and  unjust  irritant  to  Southern  feeling;  and  in  De- 
cember, 1860,  at  a  meeting  of  State  Governors  in  New  York — 
Washburn  of  Maine,  Banks  of  Massachusetts,  Morgan  of  New 
York,  and  Yates  of  Illinois,  Republicans ;  and  Sprague  of  Rhode 
Island  and  Packer  of  Pennsylvania,  Democrats — it  was  agreed  to 
recommend  the  early  and  unconditional  repeal  of  these  laws.  An 
especially  strong  effort  for  such  repeal  was  made  in  Massachu- 
setts ;  and  ex-Judge  Benjamin  R.  Curtis  prepared  and  issued,  in 
December,  1860,  an  Address  to  the  People  of  the  State  signed 
by  a  select  body  of  men  of  known  probity,  disinterestedness,  and 
weight  of  character,  such  as  Chief  Justice  Shaw,  ex-Governor 
John  H.  Clifford,  Joel  Parker,  Theophilus  Parsons,  Emory 
Washburn,  ex-Governor  Henry  J.  Gardner,  Jared  Sparks,  and 
many  others  equally  prominent.  ( I ) 

Professor  Parker  also  contributed  a  series  of  letters  to  the 
Boston  Journal,  beginning  December  25,  1860,  and  ending  Janu- 
ary 28,  1861,  dealing  with  the  subject  of  the  Personal  Liberty 
Laws  of  Massachusetts,  in  which  he  considered  the  influence 
which  produced  them,  their  history  and  purpose ;  and  he  vigor- 
ously maintained  their  absolute  unconstitutionality.  To  a 
criticism  that  he,  as  Commissioner  to  revise  the  statutes,  had 
embodied  them  in  the  recent  General  Statutes  of  the  State,  he 
replied,  that  as  such  Commissioner  he  had  no  power  to  pass  upon 
doubtful  questions  of  constitutional  law,  but  was  forced  to  take 
the  statutes  as  he  found  them.  He  closed  the  last  of  these  power- 
ful letters  by  an  appeal  to  Massachusetts,  "as  a  question  of  right 
and  conscience",  to  repeal  these  laws,  earnestly  urging  that  on  the 
action  of  the  Legislature  might  "depend  the  question  of  the  final 
dissolution  of  the  Union".  "This  practical  nullification",  he  said, 
"is  a  wrong  done  to  the  Slave  States,  excused  in  some  measure, 
as  has  been  said,  by  the  repeated  outrages  in  those  States  upon 
citizens  of  the  Free  States ;  but  not  thereby  justified".  He  pointed 
out  the  danger  of  alienating  other  States  now  in  sympathy,  de- 
claring that  if  Massachusetts  "stolidly  reposed  on  her  rights  as 
an  independent  State",  it  might  lead  the  Middle  Atlantic  States 
and  the  Border  States,  to  make  some  compromise  with  the  South. 

That  Judge  Parker  and  Judge  Curtis  were  entirely  right  as  to 
the  illegality  of  these  laws,  there  will  now  be  no  question ;  but 
at  that  heated  time,  eminent  lawyers  like  Dana  were  found  to 


(i)     Life  and  Writings  of  B.  R.  Curtis,  Vol.  I. 


HARVARD  LAW  SCHOOL. 

argue  to  the  contrary.  Aside  from  their  unconstitutionality,  these 
laws  constituted  the  height  of  political  folly,  in  that  they  justified 
the  South  in  its  claim  that,  by  such  legislation,  the  Northern 
States  were  practically  taking  the  attitude  of  attempting  to  nullify 
the  law  of  the  United  States  to  precisely  the  same  degree  and  in 
exactly  the  same  manner  as  South  Carolina  had  done  in  her 
statutes  imprisoning  free  negroes. 

The  position  taken  by  the  Law  School  Professors,  and  by 
Judge  Shaw  and  Judge  Curtis,  was,  however,  in  the  light  of 
subsequent  events,  wholly  impracticable.  By  January,  1861,  the 
time  when  any  compromise  or  temporizing  attitude  might  have 
averted  the  breach  had  gone  by ;  and  it  is  not  to  be  wondered  at 
that  this  proposed  sop  to  the  South  found  little  favor  among  the 
more  radical  Republicans  of  the  North. 

Professor  Parker  followed  up  his  letters  on  the  Personal  Lib- 
erty Laws  with  a  series  of  powerful  letters  to  the  Boston  Journal 
February  4, — 25,  1861  on  Slavery  in  the  Territories,  which 
embodied  a  keen  dissection  of  the  Dred  Scott  case.  These  letters, 
as  embodying  the  views  of  the  Harvard  Law  Faculty  on  the  great 
question  of  the  constitutional  right  of  Congress  to  legislate  as  to 
slavery  in  the  territories  were  widely  quoted,  and  were  of  great 
influence  in  the  community.  ( I ) 

After  Lincoln's  election  in  the  fall  of  1860,  the  Southern  stu- 
dents at  the  School  had  begun  to  leave,  and  before  the  date  of  the 
attack  on  Fort  Sumter,  April  12,  1861,  many  had  gone. 

The  official  figures  show  the  beginning  of  the  movement.  In 
1859-60,  the  number  of  students  at  the  opening  of  the  fall  term 
was  166,  the  average  number  in  attendance  during  the  year,  161, 
from  26  of  the  United  States,  the  District  of  Columbia,  the 
Isthmus  of  Panama  and  France.  The  number  at  the  opening  of 
the  fall  term  in  1860-61  was  157,  and  the  average  number  during 
the  year  148,  from  24  of  the  United  States,  the  District  of  Co- 
lumbia, and  New  Brunswick. 

The  friendly  relations  between  the  students  from  the  different 
sections  of  the  country,  however,  continued  pleasant,  despite  the 


(i)  Those  interested  in  the  decision  of  the  United  States  Supreme 
Court  in  loop,  in  the  Insular  Cases,  will  find  in  these  letters  a  very  keen 
legal  discussion  of  the  position  taken  by  Chief  Justice  Taney  in  1856,  and 
by  the  anti-Imperialists  in  1898,  that  the  Constitution  extended,  at  once 
and  ipso  facto,  to  territory  acquired  by  the  United  States.  This  doctrine 
Parker  vigorously  controverted  both  as  a  legal  and  historical  proposi- 
tion. 


WAR  PERIOD.  265 

heat  of  sectional  passion  in  the  outside  world.  An  eloquent  ap- 
peal to  exert  all  their  influence  towards  political  harmony  was 
made  to  them  by  Professor  VVashburn  at  the  close  of  the  first 
term,  January  11,  1861. 

It  had,  for  some  years,  been  the  custom  of  the  Professors  to  de- 
vote a  portion  of  the  closing  lecture  of  each  term  to  the  consider- 
ation of  topics  of  a  less  technical  nature  than  those  usually  dis- 
cussed in  the  lecture  room ;  and  Washburn's  lecture  was  on  Pro- 
fessional Training  as  an  Element  of  Success  and  Conservative 
Influence. 

In  sincere  and  affecting  terms,  he  urged  the  necessity  of 
courtesy  and  fairness  in  the  discussion  of  the  questions  which 
were  alienating  the  South  from  the  North,  and  he  brought  home 
this  doctrine  directly  to  the  young  men  before  him : 

If  you  ask  me  who  is  to  do  this — who  can  hope  to  check  this 
flood  of  passion  and  ill  blood  that  is  threatening  to  blight  the  fair 
land,  I  answer,  you,  and  everyone  of  you,  if  you  will  but  lend 
your  hand  to  the  work.  You  have  been  training  your  minds  to 
see  that  there  are  two  sides  to  every  case;  that  there  may  be 
earnestness  of  discussion,  without  involving  passion  and  bitter- 
ness of  spirit. 

The  students,  greatly  impressed  by  the  address,  requested  its 
publication ;  and  to  a  Committee  consisting  of  Michael  W.  Robin- 
son, Edwin  H.  Abbott,  and  Henry  A.  White,  Professor  Wash- 
burn  replied  explaining  the  purposes  of  his  lecture: 

It  was  rather  the  impulse  of  feeling,  than  the  result  of  much 
reflection,  that  led  me  to  go  beyond  the  limits  of  the  few  parting 
words  of  counsel  and  encouragement  which  the  close  of  the  term 
and  the  departure  of  many  of  the  members  of  the  School  seemed 
to  call  for,  and  to  remind  them  of  the  solemn  duties  and  responsi- 
bilities which  they  were  about  to  assume  as  citizens  and  as  mem- 
bers of  the  profession  which  they  had  chosen  especially  at  this 
eventful  crisis. 

It  seemed  to  me  to  be  a  fitting  occasion  to  impress  upon  their 
minds  what  I  regard  as  a  solemn  truth,  that  it  requires  only  the 
same  spirit  of  courtesy  and  forbearance,  the  same  appreciation 
of  and  respect  for  the  rights  and  opinions  of  those  who  stand 
opposed  to  each  other  as  citizens,  which  advocates,  trained  in  the 
discipline  of  our  profession,  extend  to  one  another  in  the  contro- 
versies in  which  they  are  called  to  engage,  to  correct  this  acrimony 
of  feeling  and  harshness  of  language  which  render  local  and 
sectional  differences  in  our  country  so  irritating  and  alarming.  I 


266  HARVARD  LAW  SCHOOL. 

was  especially  encouraged  to  attempt  this  by  the  condition  of  the 
School  itself.  I  found  upon  its  catalogue  for  the  present  year  the 
names  of  252  young  men  gathered  here  from  29  of  the  States  of 
the  Union.  You  yourselves  represent  localities  as  remote  as 
Missouri,  Massachusetts  and  California.  I  found  that  of  these, 
66  had  their  homes  in  13  of  the  States,  the  District  of  Columbia 
included,  in  which  that  system  is  a  recognized  domestic  institution 
which  has  been  so  fruitful  an  element  of  alienation  between  the 
different  sections  of  our  country.  And  yet,  amidst  the  excitement 
which  has  been  agitating  the  public  mind  outside  of  these  walls, 
everything  within  them  has  been  characterized  by  calm  and  dis- 
passionate harmony  and  good  will.  It  was  not  because  these 
young  men  were  not  familiar  with  the  causes  of  this  agitation, 
nor  was  it  that  they  did  not  share  deeply  in  the  feeling  which 
prevailed  in  the  several  sections  of  the  country  with  which  they 
were  connected.  It  was  in  the  first  place,  because  they  were  so 
situated  here  that  they  could  not  fail  to  perceive  that  there  were 
two  sides  to  the  question  in  controversy  and  were  able  to  apply 
other  tests  to  its  merits  than  that  of  mere  feeling.  In  the  next 
place,  their  training  here  and  elsewhere,  as  gentlemen,  taught 
them  to  regard  the  opinions  of  others,  and  this  was  aided  by  that 
habit  of  investigation  which  they  had  been  cultivating  as  part  of 
the  mental  discipline  of  the  School.  Added  to  this,  there  were 
numerous  ties  of  common  sympathy  which  had  naturally  grown 
up  between  them — such  ties  as,  but  for  the  mischievous  inter- 
ference of  rash  and  wicked  men,  might  still  bind  our  whole  coun- 
try together,  under  the  influence  of  which,  and  the  other  causes 
which  I  have  suggested,  a  spirit  of  forbearance  and  self  respect 
had  been  cherished  which  rendered  their  intercourse  with  each 
other  pleasant,  and,  may  I  not  hope,  their  connection  with  the 
School  at  the  same  time  pleasant  and  profitable. 

It  seemed  to  me  that  if  these  habits  of  thought  and  self  dis- 
cipline were  carried  with  them  into  active  life,  they  might  exert 
a  power  and  an  influence  over  the  opinions  and  feelings  of  others 
which  in  this  day  of  rash  and  inconsiderate  action  in  all  parts  of 
our  country,  would  tell  upon  the  future  of  its  history. 

.  .  .  And  I  greatly  mistake  if  the  sentiments  which  have 
been  received  with  favor  by  you  and  those  whom  you  represent 
will  not  find  a  cordial  response  wherever  they  meet  the  eye  of  a 
student  of  Harvard  Law  School,  and  will  awaken  some  of  these 
pleasant  memories  which  I  trust  will  be  among  the  treasured 
fruits  of  their  connection  with  it  who  during  the  term  just  closed 
have  placed  my  associates  and  myself  under  a  grateful  sense  of 
their  uniform  diligence,  courtesy  and  kindness. 

Before  the  Law  School  re-assembled  for  its  second  term  at  the 
close  of  the  winter  vacation,  all  hope  of  a  peaceful  outcome  of  the 
differences  between  the  States  had  been  abandoned.  By  the  end 


WAR  PERIOD.  267 

of  February,  1861,  six  of  the  Southern  States  had  adopted  ordi- 
nances of  secession.  The  heat  of  the  impending  conflict  had  al- 
ready invaded  the  Law  School  and  war  talk  was  prevalent  in  the 
debates  of  the  Assembly  to  such  an  extent  that  its  meetings  were 
suspended.  The  position  of  the  few  Southern  students  who 
were  remaining  to  finish  their  studies  was  no  longer  one  of 
pleasant  or  agreeable  intercourse. 

A  letter  from  Oliver  Wendell  Holmes  to  John  Lathrop  Mot- 
ley, Feb.  16,  1861,  gives  an  excellent  description  of  this  period 
of  uncertainty (i)  : 

I  am  thankful  for  your  sake  that  you  are  out  of  this  wretched 
country.  There  was  never  anything  in  our  experience  that  gave 
any  idea  of  it  before.  Not  that  we  have  had  any  material  suffer- 
ing as  yet.  Our  factories  have  been  at  work,  and  our  dividends 
have  been  paid.  Society — in  Boston,  at  least — has  been  nearly 
as  gay  as  usual.  .  .  .  We  have  had  predictions,  to  be  sure, 
that  New  England  was  to  be  left  out  in  the  cold  if  a  new  con- 
federacy was  formed,  and  that  the  grass  was  to  grow  in  the 
streets  of  Boston.  But  prophets  are  at  a  terrible  discount,  and 
in  spite  of  these  predictions,  Merrimac  sells  at  $1125.  It  is  the 
terrible  uncertainty  of  everything — most  of  all,  uncertainty  of 
opinion  of  men,  I  had  almost  said  of  principles.  From  the  im- 
practicable Abolitionist,  as  bent  on  total  separation  from  the 
South,  as  Carolina  is  on  secession  from  the  North,  to  the  Hunker 
or  Submissionist,  or  whatever  you  choose  to  call  the  wretch  who 
would  sacrifice  everything,  and  beg  the  South's  pardon  for  of- 
fending it,  you  find  all  shades  of  opinion  in  our  streets.  If  Mr. 
Seward  or  Mr.  Adams  moves  in  favor  of  compromise,  the  whole 
Republican  party  sways,  like  a  field  of  grain,  before  the  breath 
of  either  of  them.  If  Mr.  Lincoln  says  he  shall  execute  the  laws 
and  collect  the  revenue  though  the  heavens  cave  in,  the  backs  of 
the  Republicans  stiffen  again,  and  they  take  down  the  old  Revo- 
lutionary king's  arms  and  begin  to  ask  whether  they  can  be 
altered  to  carry  minie  bullets. 

In  the  meantime,  as  you  know  very  well,  a  monstrous  con- 
spiracy has  been  hatching  for  nobody  knows  how  long,  barely 
defeated,  in  its  first  great  move,  by  two  occurrences — Major 
Anderson's  retreat  to  Fort  Sumter,  and  the  exposure  of  the  great 
defalcations.  The  expressions  of  popular  opinion  in  Virginia 
and  Tennessee  have  encouraged  greatly  those  who  hope  for  union 
on  the  basis  of  compromise ;  but  this  evening's  news  seems  to 
throw  doubt  on  the  possibility  of  the  North  and  the  Border  States 
ever  coming  to  terms ;  and  I  see  in  this  evening's  paper,  the 
threat  thrown  out  that  if  the  Southern  ports  are  blockaded,  fifty 


(i)     Life  and  Letters  of  Oliver  Wendell  Holmes,  by  John  T.  Morse. 


268  HARVARD  LAW  SCHOOL. 

regiments  will  be  set  in  motion  for  Washington  !  Nobody  knows  : 
everybody  guesses.  Seward  seem  to  be  hopeful.  I  had  a  long 
talk  with  Banks ;  he  fears  the  formation  of  a  powerful  Southern 
military  empire,  which  will  give  us  trouble.  Mr.  Adams  predicts 
that  the  Southern  Confederacy  will  be  an  ignominious  failure. 

.  .  .  There  is  no  end  to  the  shades  of  opinion.  Nobody 
knows  where  he  stands  but  Wendell  Phillips  and  his  out-and-out- 
ers. Before  this  political  cataclysm,  we  were  all  sailing  on  as 
quietly  and  harmoniously  as  a  crew  of  good  Dutchman  in  a 
treckschuyt. 

On  April  12,  1861,  came  the  news  of  the  firing  upon  the  flag 
at  Fort  Sumter.  Nowhere  can  the  atmosphere  of  the  thrilling 
days  that  immediately  followed  be  better  felt  than  in  the  entries 
made  by  Longfellow  in  his  diary : 

April  17,  1861 — Go  to  town.  Faces  in  the  street  are  stern  and 
serious.  A  crowd  in  the  state  house.  At  intervals 
drums  are  heard,  and  a  red  coated  horseman  gallops 
along.  At  the  gateway  of  the  state  house  two  youths 
of  twenty  with  smooth  fair  cheeks  stand  sentry.  Ah, 
woe  the  day ! 

April  18  In  the  afternoon,  L who  is  full  of  fight,  while  I  see 

the  sadder  aspect  of  the  war. 

April  19.  Walk  before  breakfast  and  hear  the  birds  sing.  Noth- 
ing is  talked  of  but  this  ghastly  war. 

April  20.  In  town.  Dine  with  the  Adirondack  Club ;  and  we  talk 
war,  war,  war.  Interesting  but  not  agreeable  nor  in- 
structive, as  none  of  us  know  anything  about  it. 
Walked  out  to  Cambridge  with  Lowell  in  the  tranquil 
moonlight. 

April  21.  At  chapel,  a  war  sermon. 

April  23.  Weary  days  with  wars  and  rumors  of  wars  and  march- 
ing of  troops  and  flags  waving  and  people  talking.  No 
reading  but  reading  of  newspapers. 

April  26.  Sumner  came  out  at  tea,  looking  strong  and  well  and 
very  cheery  in  spirit.  He  gave  us  an  interesting  ac- 
count of  his  narrow  escape  from  the  mob  in  Balti- 
more. 

April  27.  In  town.  All  the  streets  gay  with  flags.  Dined  with 
the  Club.  Sumner  there ;  and  just  at  the  end  C.  F. 
Adams,  our  minister  to  England. 

April  30.  When  the  times  have  such  a  gunpowder  flavor  all 
literature  loses  its  taste.  Newspapers  are  the  only 
reading.  .  .  . 

May  2.  The  civil  war  grumbles  and  growls  and  gathers,  but 
the  storm  clouds  do  not  yet  break.  Sumner  comes  out 
to  tea.  He  seems  rather  depressed.  It  is  indeed  a 


Q     00 


H 

>      8 


WAR  PERIOD.  269 

heavy  atmosphere  to  breathe — the  impending  doom  of 
a  nation ! 

May  9.  In  the  afternoon  with  Felton  to  the  arsenal  to  see  the 
students  drill — a  dress  parade.  As  the  mayor  did  not 
arrive,  Felton  and  I  were  requested  to  review  them ! 
— which  we  did,  by  marching  up  and  down  in  front 
and  rear. 

May  18.  In  town.  The  "Corner"  looks  gloomy  enough.  Busi- 
ness at  a  standstill.  So  much  for  war  and  books. 

May  27.  The  days  come  and  go  with  a  trouble  in  the  air  and 
in  the  hearts  of  men. 

Meanwhile,  the  students,  both  undergraduates  and  Law  School, 
were  taking  an  active  part  in  the  preparations  for  war.  Toward 
the  end  of  April,  a  report  was  prevalent  in  Cambridge  that  Con- 
federate agents  were  planning  an  attack  on  the  United  States 
arsenal  in  that  city,  then  located  at  the  corner  of  Pollen  and 
Garden  Streets.  Governor  John  A.  Andrew  asked  President 
Felton,  if  Harvard  College  could  not  relieve  the  State  of  the  duty 
of  guarding  the  arsenal  by  providing  a  guard  of  students.  This 
proposition,  being  referred  to  the  Faculty  by  the  President,  was 
eagerly  accepted  by  some  of  the  younger  Professors,  led  by 
Charles  W.  Eliot,  then  Assistant  Professor  of  Chemistry;  and 
arrangements  were  at  once  made  for  a  student  guard.  Professor 
Parsons  of  the  Law  School  (whose  house  on  Garden  Street  was 
close  to  the  ArsenaH  took  especial  interest  in  the  project  and 
roused  the  law  students  to  its  support. 

On  April  29,  1861,  he  wrote  to  President  Felton: 

There  is  reason,  abundant  reason  .  .  .  for  a  sufficient  and 
organized  guard  there  (the  arsenal)  for  a  good  while.  It  would 
be  inconvenient  to  the  Governor  to  take  it  from  the  students  and 
send  over  a  company  of  militia — but  the  present  guard  cannot 
hold  it  long.  Professor  Eliot  spoke  of  organizing  a  battalion  some 
300-400  strong,  from  the  students  generally.  By  mingling  with  the 
new  men  some  of  the  older  and  drilled  men  and  so  arranging  that 
no  one  company  of  50  men  should  be  called  oftener  than  once 
a  week — this  might  do.  I  have  provided  for  bedding  until  the 
government  can  supply  it.  I  have  seen  the  Adjutant  General  and 
hope  you  will  be  able  to  see  that  things  go  about  right  at  once. 

What  a  shame — what  a  horror  it  is — that  here,  right  in  the 
midst  of  us — there  should  be  a  real  need  to  guard  the  arsenal. — 
But  such  is  the  fact.(i) 

(i)  Many  persons  thought  at  the  time  that  Professor  Parsons'  fears 
were  ridiculous  and  imaginary,  and  that  there  was  not  the  slightest  dan- 
ger of  any  Confederate  attack  on  the  arsenal;  but  the  fact  is  otherwise. 


270  HARVARD  LAW  SCHOOL. 

Felton  wrote  to  Governor  Andrew,  April  30,  1861,  that  the 
duty  of  guarding  the  arsenal  "will  be  joyously  undertaken  and 
faithfully  performed  by  the  students  of  Harvard  College;  and 
Mr.  Eliot — one  of  our  Professors  who  is  amply  qualified  for  the 
charge — has  made  the  most  judicious  arrangements  both  for  the 
drill  and  for  the  watch."(i) 


Charles  H.  Owen  of  Hartford,  Connecticut,  (who  was  in  the  Law 
School  1861-1863)  writes  to  the  author  January  10,  1908,  that  during  his 
attendance  at  the  School  he  was  the  secret  agent  of  the  war  department 
and  of  the  Governors  of  Connecticut  and  New  York,  and  that  he  "was 
required  to  make  several  reports  as  to  the  efficiency  of  the  guard  of  the 
arsenal  and  on  the  conduct  of  one  or  two  vessels  in  the  harbor.  .  .  . 
I  am  perfectly  safe  in  saying  that  there  was  a  definite  plan  of  certain 
Confederates  to  destroy  Union  munitions  of  war,  including  the  wreck- 
ing of  armories  and  factories  of  weapons,  and  that  Confederate  soldiers 
believed  to  be  detailed  for  that  purpose  were  known  to  be  in  the  neigh- 
borhood of  the  Cambridge  arsenal,  the  arsenal  and  gunshops  at  Spring- 
field, the  arsenal,  Colts  rifle  and  pistol  factories,  and  Sharp's  rifle  factory 
at  Hartford  and  other  localities.  I  also  know  that  it  was  a  matter  of 
great  satisfaction  at  Headquarters  in  Hartford  and  Washington  to  learn 
that  these  places  were  very  efficiently  guarded  without  demanding  any 
considerable  increase  of  details  from  the  regular  army.  I  did  not  know 
that  Professor  Parsons  had  anything  to  do  with  these  arrangements  until 
recently  informed.  It  may  have  been  stupid  in  me  not  to  have  inferred 
something  of  the  sort  from  questions  asked  me  about  his  ( non-legal  J 
capacity  at  the  time.  Incidently,  I  did  however  come  to  understand  that 
he  was  much  respected  and  relied  on  for  something  especial  he  had  been 
doing." 

(l)  The  remainder  of  this  letter  (See  Harvard  Coll.  Archives  Let- 
ters of  the  President)  is  full  of  interest: 

"As  our  young  men  have  had  but  little  of  experience  in  the  use  of 
arms, — some  of  them  none  at  all — and  as  precautions  at  the  arsenal,  as 
well  for  its  security  from  accident  as  for  the  health  of  young  persons 
employed  upon  night  service,  might  be  desirable,  which  would  not  be 
necessary  in  the  case  of  experienced  soldiers,  we  think  that  when  under- 
graduates at  least  are  on  duty  it  would  be  well  for  the  military  author- 
ities to  require 

1.  That  there  should  be  no  smoking  or  open  lights  in  the  buildings. 

2.  That  no  spirit  of  any  kind  should  be  permitted. 

3.  That  a  mattress  for  each  man  should  be  provided. 

4.  A  regular  supply  of  provisions. 

We  shall  take  care  that  those  who  have  had  some  drilling  shall  go  first ; 
and  the  others  shall  be  prepared  as  fast  as  possible.  Mr.  Eliot  thinks 
that  the  present  guard  can  be  relieved  by  a  detachment  of  undergradu- 
ates as  early  as  Friday  morning.  Mr.  Parsons  suggests  that  a  servant 
should  be  there  all  the  time;  and  he  has  sent  one  today. 

I  daresay  that  some  of  these  suggestions  may  appear  uncalled  for  to 
a  military  man.  I  am  not  a  military  man,  though  I  have  handled  a  gun  ; 
but  I  feel  very  solicitous  both  for  the  absolute  safety  of  the  arsenal  and 
for  the  health  of  the  young  men,  many  of  whom  never  passed  a  night 
out  of  a  comfortable  bed.  The  exercise  they  wilt  have  will  be  very 
valuable  to  them  and  it  will  be  a  great  gratification  to  know  that  they  are 
rendering  service  to  the  State. 

Mr.  Eliot  is  of  opinion  that  it  will  not  be  expedient  to  have  a  ser- 
geant's squad  connected  with  them.  Upon  reflection  I  think  this  view 
is  correct.  He  has  excellent  officers  to  place  on  duty  under  Col. 


\VAR  PERIOD.  271 

The  students  were  at  once  organized  and  detailed  in  companies 
of  42  each,  each  company  remaining  three  days  on  duty  at  a  time. 
They  were  officered  by  members  of  the  Cadets  and  under  com- 
mand of  Lieut.  Col.  C.  C.  Holmes. (i)  On  May  6,  President 
Felton  wrote  to  Adjutant  General  Schouler  that,  "our  student 
guards  have  been  prompt,  attentive,  obedient  to  orders,  and  have 
made  surprising  progress  in  mastering  the  details  of  military 
movements  as  far  as  they  have  had  the  opportunity.  I  believe  brain 
makes  the  soldier  as  well  as  anything  else.  An  army  of  educated 
men  would  sweep  all  before  them."  On  May  8,  he  wrote :  "The 
guard  at  the  arsenal  is  very  efficiently  kept.  The  officers  of  the 
Cadets  speak  in  the  best  terms  of  the  intelligence  and  zeal  of  the 
young  men,  and  they  have  taken  great  pains  to  make  the  training 
as  thorough  as  possible." 

Meanwhile  the  undergraduates  and  law  students  had  organ- 
ized a  Drill  Club  which  met  in  Brattle  House,  for  which  Adj. 
Gen.  Schouler  supplied  the  College  with  400  muskets,  William 
W.  Greenough  and  others  contributing  $500  to  aid  in  defraying 
the  expenses  of  this  Club  (2),  and  J.  Lewis  Stackpole,  Amos  A. 
Lawrence,  James  A.  Perkins,  William  W.  Swan  and  James  B. 
Walker  volunteering  their  services  in  giving  miltary  instruc- 
tion. (3) 

President  Felton  was  at  first  opposed  to  this  Drill  Club,  fear- 
ing the  interruption  to  College  work  and  study ;  but  the  pressure 
upon  him  from  students  and  from  their  parents  proved  too  great 
to  withstand.  (4) 


Meacham,  and  I  doubt  not  everything  will  go  in  an  efficient  and  orderly 
style. 

The  oftener  the  adjutant  general  and  other  distinguished  officers  can 
visit  the  arsenal  and  say  a  word  to  the  young  guards  the  better  they 
will  like  it. 

I  cannot  close  without  thanking  your  Excellency  in  behalf  of  the  stu- 
dents for  the  confidence  you  have  reposed  in  them,  by  entrusting  to 
their  hands  so  honorable  and  responsible  a  duty." 

(1)  See  letter   of    President   Felton   to   Adj.    Gen.    William    Schouler, 
enclosing  list  of  student  guards,   June   13,   1861 — Harv.   Coll.  Archives — 
Letters  to  the  President. 

(2)  See    letter    of    President    Felton    to    W.    W.    Greenough,    May    I, 
1861. — Uarv.  Coll.  Archives,  Letters  of  the  President. 

(3)  See  letter  of  President  Felton  to  J.  L.  Stackpole,  May  27,   1861, 
tendering  his  thanks  to  these  gentlemen. 

(4)  See   interesting  letter   from   President  Felton  to  William   Fabens 
of  Marblehead,  May   i,   1861 : 

"Your  son  spoke  to  me  today  on  the  subject  of  the  drill  which  we  have 
recently  permitted  to  be  introduced.  He  thought  you  were  under  some 
apprehension  that  it  might  be  connected  with  the  militia  of  the  State.  I 
write  to  say  that  it  is  wholly  independent  of  any  military  service  which 


272  HARVARD  LAW  SCHOOL. 

The  undergraduate  and  law  student  guard  remained  on  duty 
at  the  arsenal  for  about  a  month.  On  May  31,  1861,  however, 
Henry  Lee,  aide  de  camp  to  Governor  Andrew,  wrote  to  Presi- 
dent Felton,  announcing  that  all  ammunition  had  been  removed 
from  the  arsenal  to  Captains  Island  in  Boston  Harbor,  and  ended 
his  letter  with  this  acknowledgment  of  the  service  performed  by 
the  students:  "The  State  no  longer  needs  the  services  of  the 
students  as  guards.  I  am  requested  by  his  Excellency  to  thank  the 
young  gentlemen  who  promptly  offered  and  faithfully  performed 
this  duty." 

The  general  condition  of  the  College  during  these  early  days 
of  the  war  was  stated  by  President  Felton  in  his  Annual  Report 
for  1 860-6 1 : 

Though  not  insensible  to  the  agitations  of  the  times,  no  de- 
partment of  the  University  has  for  a  moment  ceased  or  slackened 
its  appropriate  labors.  The  general  conditon  as  to  order  and 
discipline  has  never  been  better,  with  the  exception  of  a  partial 
interruption  of  the  studies  of  the  young  men  who  by  request  of 
His  Excellency  the  Governor  were  detailed  in  succession  to  per- 
form guard  duty  at  the  arsenal,  the  work  of  the  several  classes 
went  on  with  its  customary  regularity ;  and  even  those  lessons  that 
were  thus  omitted  were  made  up  in  the  reviews.  Two  or  three 
students  belonging  to  military  companies  were  allowed  to  be  ab- 
sent during  the  three  months  for  which  the  requisition  of  the 
President  was  made,  and  a  few  were  permitted,  towards  the  end 
of  the  last  term  of  their  Senior  year,  to  avail  themselves  of  the 
opportunity  offered  them  to  acquire  some  knowledge  of  military 
drill  by  joining  the  troops  stationed  at  one  of  the  forts  in  Boston 

the  State  can  claim.  We  shall  never  allow  a  company  to  be  enrolled, 
as  I  am  sorry  to  see  they  have  at  some  of  the  colleges  for  the  purpose 
of  offering  them  for  the  war.  We  consider  our  young  men  simply  as 
students  in  training  for  their  future  careers.  But  there  is  such  a  war 
fever  in  the  community  .and  so  great  a  probability,  as  some  think,  of  a 
long  war  in  which  many  of  our  youth  may  be  called  out  by  the  country, 
that  we  thought  our  most  prudent  course  would  be  to  let  them  have  a 
drill  under  such  regulation  that  their  studies  should  not  be  interfered 
with. 

The  Governor  has  also  requested  us  to  allow  the  students  to  protect 
the  arsenal  as  "a  guard  of  honor."  We  have  consented,  thinking  it 
would  be  a  good  experience  for  the  young  men  and  a  real  service,  as 
the  Governor  assures  me  it  will  be  to  the  Commonwealth,  since  the  com- 
pany ordered  on  this  duty  has  been  called  into  the  field.  For  both 
of  these  exercises  we  require  the  young  men  to  bring  their  parents'  or 
guardians'  certificate  that  their  consent  is  granted. 

The  watch  at  the  arsenal  will  interrupt  the  studies  about  once  a  week 
or  ten  days  ...  I  do  not  advise  the  students  to  enter  their  names  for 
either  task.  I  hate  war  and  all  its  works.  But  Milton  says  that  a  citi- 
zen should  be  prepared  by  his  education  to  perform  justly  and  magnani- 
mously all  the  duties  of  peace  and  war." 


WAR  PERIOD.  273 

Harbor,  inasmuch  as  they  were  intending  to  enter  the  service 
immediately  after  taking  their  degrees.  A  drill  was  also  estab- 
lished in  place  of  the  customary  gymnastic  exercises  for  a  por- 
tion of  the  summer  term,  arms  having  been  furnished  tempor- 
arily for  that  purpose  by  the  government  of  the  Commonwealth. 
The  drill  was  conducted  partly  by  College  officers,  and  partly  by 
other  gentlemen,  who  kindly  volunteered  their  services  and  gave 
much  valuable  time  to  this  subject.  The  general  expenses  of 
these  military  arrangements  were  defrayed  by  a  fund  contributed 
by  a  few  liberal-minded  friends  of  the  College.  Some  undergradu- 
ates still  continue  in  the  army.  Many  graduates  of  the  recent 
classes  responded  instantly  to  the  call  of  the  country,  and  are 
serving  in  the  field.  They  are  among  the  bravest  of  the  brave  ; 
not  one  has  failed,  whenever  opportunity  offered,  to  show  his 
readiness  to  lay  down  his  life  for  his  country.  A  cultivated  in- 
tellect and  the  natural  sense  of  honor,  sharpened  by  the  discipline 
of  the  University,  are  not  only  the  best  preparation  for  civil  life, 
but  for  the  duties  and  dangers  of  war. 

During  these  scenes,  so  unusual  in  our  academic  retreats,  the 
undersigned  became  deeply  impressed  with  the  importance  of 
making  more  than  usual  efforts  to  carry  on  uninterruptedly  the 
works  of  peace  in  the  midst  of  war,  and  he  and  his  associates 
insisted  that  no  part  of  the  College  work  should  be  left  unper- 
formed, and  no  one  of  the  College  festivals  should  be  omitted. 
One  of  the  greatest  evils  of  war  is  the  check  it  puts  almost  in- 
variably to  the  progress  of  science  and  civilization  ;  but  they 
serve  their  country  who  continue  toiling  in  the  discovery  of  truth 
and  the  education  of  the  young,  no  less  than  those  who  arm 
themselves  for  the  field  of  battle  ;  and  it  would  be  a  great  mistake 
to  make  any  essential  modifications  in  our  colleges  and  schools  by 
introducing  a  large  element  of  military  instruction  and  discipline, 
under  the  idea  of  adapting  them  to  the  peculiar  exigencies  of  the 
hour.  While  it  may  be  useful  to  make  to  some  extent  a  military 
drill  a  part  of  the  gymnastic  training  now  so  generally  intro- 
duced, it  should  be  remembered  that  the  gymnastic  system 
itself  is,  according  to  the  late  experience  of  European  armies, 
the  best  physical  basis  for  military  discipline. 

A  law  student's  reminiscence  of  those  exciting  days  of  1861 
is  given  in  the  following  letter  from  John  D.  Long  (L.  S.  1860- 


That  spring  the  war  came  on;  the  streets  were  full  of  troops 
and  enthusiastic  crowds.  Drill  clubs  were  formed  and  the  law 
students  were  in  evidence  in  the  ranks  —  among  them  I  recall  the 
figure  of  James  Russell  Lowell  and  the  fair  hair  of  William 
Lowell  Putnam  (both  nephews  of  the  poet.)  At  one  time  early 


(i)     Letter  of  John  D  Long  to    the  author  (1907). 
18 


274  HARVARD  LAW  SCHOOL. 

in  May,  we  were  put  on  guard  at  the  arsenal  where  were  stored 
powder  and  other  munitions  of  war.  There  was  suspicion  prob- 
ably unfounded — of  danger  of  incendiaries  in  the  rebel  interest. 
At  any  rate  we  kept  a  guard  and  took  our  turn  in  pacing  up  and 
down  our  sentinel  beats,  day  and  night,  as  if  an  invading  force 
might  at  any  moment  assault  us.  Among  us  were  James  M. 
Morton  (now  of  the  Massachusetts  Supreme  Judicial  Court), 
Jeremiah  Smith  (now  Professor  at  the  Law  School)  Robert  D. 
Smith  and  John  C.  Ropes. 

In  the  Law  School  itself,  both  Professor  Parsons  and  Professor 
Parker  kept  the  subject  of  the  war  in  its  legal  aspects  constantly 
before  the  students,  and  their  elaborate  and  careful,  lectures,  es- 
pecially those  of  Parker,  imbued  their  pupils  with  a  far  deeper 
understanding  of  the  complicated  legal  problems  to  which  the 
war  gave  rise  than  the  outside  public  could  obtain ;  although  the 
radical  differences  of  opinion  between  the  two  Professors  on  the 
law  involved,  was  a  source  of  considerable  comment.  Professor 
Parsons  had  a  personal  interest  in  the  war,  for  his  son  had  en- 
listed in  the  army;  his  legal  advice  was  sought  for  by  the  Gov- 
ernment on  many  occasions ;  and  he  placed  at  its  disposition,  his 
yacht  "Eliza". 

Professor  Washburn,  although  sixty-two  years  old,  became  a 
member  and  officer  of  a  company  formed  in  Cambridge  for  such 
duties  as  might  devolve  on  a  home  guard,  and  bore  enthusiastic- 
ally the  fatigue  of  exercise  and  drill.  By  constant  speeches,  lec- 
tures, articles  and  money  contributions,  he  showed  his  devotion ; 
and  his  son,  Emory  Washburn,  Jr.  (U.  S.  1861-62)  served  in  the 
army. 

One  of  the  first  of  his  series  of  war  lectures  was  delivered  by 
Parker  in  May,  1861,  on  The  Right  of  Secession(i) — a  search- 
ing arraignment  of  Jefferson  Davis'  message  to  the  Congress  of 
the  Confederate  States,  and  of  his  fallacious  theory  of  the  Con- 
stitution as  a  compact  between  States. 

A  few  weeks  later,  on  June  n,  he  gave  a  long  lecture  on  the 
famous  case  of  E.rparte  Merryman,  in  which  Chief  Justice  Taney 
had  just  delivered  his  noted  opinion,  ordering  the  writ  of  habeas 
corpus  in  behalf  of  Merryman,  who  had  been  arrested  by  the 
military  authorities  for  complicity  in  the  attack  by  the  mob  on 
the  Sixth  Massachusetts  Regiment  when  passing  through  Balti- 
more. The  officer  in  custody  of  Merryman,  declined,  on  the  order 


(i)     Published  in  the  North  American  Review  (July  1861). 


WAR  PERIOD.  275 

of  President  Lincoln,  to  recognize  the  right  of  the  court  to  issue 
the  writ  and  refused  to  produce  the  prisoner. 

Professor  Parker  differed  widely  from  Taney's  views,  and 
declared  that,  while  the  President  might  not  in  law  have  the 
right  to  suspend  the  writ  of  habeas  corpus,  yet  "the  existence  of 
martial  law,  so  far  as  the  operation  of  that  law  extends,  is,  ipso- 
facto,  a  suspension  of  the  writ".  There  is  little  doubt  that 
Parker's  views  were  correct,  and  if  President  Lincoln  had  been 
content  to  rest  his  action  on  the  grounds  laid  down  by  Parker, 
instead  of  claiming  the  right  to  suspend  the  writ  as  an  exercise 
of  executive  power,  under  the  "war  powers  of  the  Constitution", 
he  would  have  been  spared  the  active  and  bitter  criticism  directed 
against  him  later  by  many  of  his  former  staunch  supporters,  in- 
cluding Parker  himself. 

Professor  Parsons,  being  less  conservative  by  nature,  deliv- 
ered several  lectures  on  Martial  Laiv,  in  which  he  took  more 
advanced  ground  than  Parker,  and  declared  his  frank  support  of 
the  President's  right  as  military  commander  to  suspend  the  writ 
of  habeas  corpus. 

This  was  the  beginning  of  the  series  of  differences  between 
the  two  Professors  in  their  politico-legal  views  which  lasted 
throughout  the  war. 

On  June  25,  1861,  Parker  delivered  a  lecture  on  the  Domestic 
and  Foreign  Relations  of  the  United  States,  ( i )  in  which  he  took 
the  position  that  the  "insurgents  stand  legally  as  to  the  United 
States  in  the  position  of  rebels  and  traitors,  and  their  privateers- 
men  as  pirates" ;  and  that  an  insurrection  might  "result  in  what  is 
properly  denominated  as  a  war  without  losing  its  character  as  an 
insurrection" — and  that  the  "parties  to  that  war  have  necessarily 
to  a  certain  extent  the  political  character  of  belligerents." 

This  doctrine  so  laid  down  is  of  great  interest  as  containing  the 
gist  of  the  famous  argument  made  by  Richard  H.  Dana  in  Decem- 
ber, 1862,  in  the  Prise  Cases,  and  adopted  by  the  United  States 
Supreme  Court  (i  Black  635). (2) 

The  lecture  also  discussed  the  Mason-Slidell  capture  and  the 
Trent  case — to  which  Judge  Parker  devoted  another  long  letter, 


(1)  Published  in  the  North  American  Review   (January  1862). 

(2)  In  the  proceedings  before  U.  S.  Circuit  Court  Jan.  19,  1882,  on  the 
death  of  Dana.     Judge  E.   R.   Hoar   said,   "His  arguments   in  the    Prize 
cases  were  probably  as  valuable  a  contribution  as  was  made  by  any  one 
in  civil  life  to  the  national  success  in  the  civil  war." 


276  HARVARD  LAW  SCHOOL. 

January  17,  1862,  entitled  International  Lazv(i),  after  the  settle- 
ment of  the  affair  which  came  so  near  involving  the  country  in  a 
war  with  England.  In  April  and  October,  1862,  Parker  con- 
tributed to  the  North  American  Review  two  interesting  articles 
on  Constitutional  Law  and  The  Rebellion  and  the  War,  in  which 
he  dealt  with  the  legal  status  of  the  States  which  had  seceded, 
and  outlined  his  views  on  the  extent  of  the  powers  of  the  Presi- 
dent, vigorously  denying  the  right  of  the  latter  to  emancipate 
the  slaves.  The  pronounced  views  which  he  had,  on  so 
many  occasions,  publicly  given  forth  had  now  drawn  down  upon 
him  the  violent  denunciation  of  Senator  Sumner.  There  were, 
however,  many  prominent  men  in  Massachusetts  who  entirely 
agreed  with  Parker  in  denying  to  the  President  the  extensive  and 
arbitrary  powers  which  he  had  assumed  under  plea  of  military 
necessity.  This  antagonism  to  the  Administration,  and  to  Sum- 
ner and  Governor  Andrew  as  its  representatives,  grew  stronger 
through  the  summer  of  1862;  and  it  was  finally  determined  to  put 
in  nomination  for  State  officers,  candidates  who  should  represent 
this  more  conservative  element  of  the  Republican  party.  (2) 

A  convention  of  about  1,500  men  assembled  therefore  in 
Faneuil  Hall,  October  7,  1862  ;  and  while  expressly  resolving  that 
they  would  "with  heart  and  soul  and  mind  and  strength"  support 
the  President  "in  the  prosecution  of  this  war  to  the  entire  and 
final  suppression  of  the  Rebellion,"  they  declined  to  endorse  Sum- 
ner and  Andrews,  and  nominated  Charles  Devens  for  Governor. 
The  leaders  of  this  movement  were  at  once  denounced  as 
"traitors",  "sympathizers  with  rebellion",  and  "guerilla  bands  of 
Jefferson  Davis",  the  latter  expression  being  originated  by  Sum- 
ner himself.  In  answer  to  these  onslaughts,  and  especially  to  an 
attack  made  by  a  prominent  Boston  clergyman,  Professor  Parker 
issued  on  October  30,  1862,  an  Address  to  the  People  of  Massa- 
chusetts. 


(1)  Published  in  the  North  American  Review   (May   1862). 

(2)  Edward  L.   Pierce,  in  his  Memoirs  and  Letter*  of  Sumner,  Vol. 
IV,  says:     "Ultra  conservatism  made  its  last  struggle;  and  conspicuous 
among   its    leaders   was    Prof.    Joel    Parker,    whose    judicial    temper    was 
upset  by   Sumner's   'State   Suicide'   doctrine,   and  who  combined  with   his 
abilities    as    jurist,    antipathy    to    those    who    found    more    power    in    the 
Constitution  to  deal  with  slavery  than  he  could  find." 

(3)  In   Pen   Portraits   by   "Warrington,"    is   the    following   illustration 
of  the  extreme  bitterness  of  the  Republicans  against   Parker  and  his  fol- 
lowers.    The  article  was  published  after  the  appearance  of  Parker's  Ad- 
dress. 

"There    is    an    element    of    the    comic    in    this    thing   in    its    connection 


WAR  PERIOD.  277 

This  fiery,  pungent,  and  spicy  political  document  should  be 
read  in  its  entirety  to  be  appreciated.  Of  Sumner  he  said  that : 

He  (Parker)  had  no  private  spite  or  pique  to  gratify,  having 
had  no  personal  difference  with  any  of  the  candidates  now  before 
the  public,  until  Mr.  Sumner  in  consequence  of  criticisms  upon 
his  political  course  saw  fit  to  make  the  matter  personal  between 
us.  Any  other  gentleman  is  at  perfect  liberty  to  do  the  same,  and 
the  dispensation  will  be  accepted  with  the  same  resignation  with 
which  his  demonstrations  of  personal  hostility  have  been  received. 

In  this  paper,  Parker  went  to  the  extreme  of  calling  Lincoln 
"not  only  a  monarch,  but  that  his  is  an  absolute,  irresponsible, 
uncontrollable  government — a  perfect  military  despotism" ;  and 
he  compared  him  with  Louis  Napoleon  and  the  Sultan  of  Turkey, 

with  Massachusetts  politics.  Stimulated  by  ancient  hatred  and  prejudice 
against  Charles  Sumner,  and  by  the  vain  hope  of  obtaining  some  little 
Republican  help  in  their  opposition  to  him,  half  a  dozen  hunkers  got 
together  the  other  day,  and  said,  'Let  us  prepare  and  load  our  biggest 
petard,  and  give  the  senator  a  hoist.'  The  work  of  loading  the  gun  was 
intrusted  to  Judge  Joel  Parker,  who  was  known  to  have  a  sufficiency 
of  wadding,  if  his  projectiles  were  not  of  the  most  formidable  kind.  So 
the  judge  sat  himself  down;  and  said  he  to  himself  and  his  associates, 
perhaps  to  his  mathematical  friend  Benjamin  Pierce,  'Look  here.  Given 
the  problem  to  upset  Charles  Sumner,  how  shall  we  do  it?'  .  .  .  The 
address  was  an  easy  matter  apparently ;  you  had  only  to  use  a  conglomer- 
ation of  words  with  especial  care  to  conceal  your  meaning;  to  express 
opposition  to  Sumner,  and  yet  say  nothing  about  him ;  and  so  frame 
a  document  which  should  rope  in  the  unsuspecting,  and  humbug  the  in- 
nocent, while  to  those  in  the  secret  it  should  be  luminous  with  meaning. 
But.  alas !  to  Judge  Joel  Parker,  a  controversy,  or  something  like  one, 
a  hit,  an  innuendo,  is  as  necessary  as  a  breakfast  to  a  hard-working 
laborer.  He  doubtless  looked  over  his  job  in  its  rough  draught,  and 
said,  'It  will  do :  and  yet  it  will  not  do ;  for  I  have  not  hit  anybody  a 
dig.  Go  to:  Iwill  find  a  place,  and  I  will  insert  something,  which,  while 
it  shall  do  no  harm,  shall  yet  satisfy  my  combative  sense.'  And  doubt- 
less he  interlined  the  w:ords.  'We  want  no  impotent  proclamations  now, 
and  said  to  himself,  'Now  I  have  placed  my  imprimatur  on  it,  and  the 
world  will  know  it  as  Joel  Parker's.'  And  it  went  forth.  .  .  . 

And  while  the  judge  was  putting  the  finishing  touch  to  it,  perhaps 
even  interlining  the  words  'impotent  proclamation,'  lo !  Abraham  Lincoln 
was  putting  words  together  into  an  'impotent  proclamation'  just  such  as 
Judge  Parker  had  solemnly  declared  that  he  did  not  'want :'  and,  the 
very  day  after  the  manifesto  against  'impotent  proclamations'  appeared, 
out  came  the  identical  'impotent'  one  which  the  judge  had  warned  the 
people  against;  .  .  .  And  the  next  morning  the  judge  opened  his 
morning  paper,  and  looked  to  see  further  evidences  of  the  progress  of 
the  movement;  and,  lo!  he  beheld  in  startling  big  letters  (impotent) 
'Proclamation  of  Emancipation  by  Pres.  Lincoln.'  I  draw  the  veil  over 
the  scene,  but  can  only  hope  the  judge  had  finished  his  coffee  and  muffins 
before  he  came  to  that  dreadful  heading. 

Mr.  Parker  is  understood  to  have  retired  to  his  professional  chair. 
The  Law  School  was  divided  against  itself.  Prof.  Parsons,  in  half  a 
column  of  stirring  words,  did  more  to  elect  Sumner  and  Andrew,  than 
Prof.  Parker,  by  his  hundred  columns  of  sophistry,  to  defeat  them.  .  .  ." 


278  HARVARD  LAW  SCHOOL. 

asserting  that  hereafter  there  was  to  be  no  Constitution  in  the 
prosecution  of  the  war.    And  he  wound  up  by  saying  that : 

The  Republicans  of  Massachusetts  are  doing  all  that  lies  in 
their  power  to  prostrate  the  liberties  of  the  country.  .  .  The 
issues  of  the  pending  election  are,  whether,  forgetting  the  mem- 
ories of  our  Fathers  who  have  transmitted  to  us  the  priceless  in- 
heritance of  freedom,  we  will  renounce  those  principles  and  that 
inheritance,  and  voluntarily  and  tamely  trample  our  liberties  in 
the  dust. 

In  entire  accord  with  Professor  Parker's  view  of  the  law  and 
of  the  legal  rights  of  the  President  was  Benjamin  R.  Curtis, 
whose  pamphlet,  issued  in  October,  1862,  calm  and  serious,  as  it 
was,  called  down  upon  its  author  a  storm  of  bitter  attack  from 
excited  partisans  of  the  Administration.  The  attitude  of  Parker 
and  Curtis  is  well  described  in  Curtis'  Life  and  Letters. 

While  those  who  compelled  Mr.  Lincoln  to  issue  the  Emancipa- 
tion Proclamation  of  Sept.  22,  1862,  really  cared  nothing  for  the 
source  of  power  to  which  it  was  to  be  referred,  and  while  the  ma- 
jority of  the  Northern  people  were  perhaps  gratified  that  it  had 
been  issued,  and  thought  little  of  any  question  of  principle  in- 
volved in  it,  Judge  Curtis  felt  that  he  had  a  duty  to  fulfill.  Nor 
was  that  duty  made  less  exigent,  when  another  Proclamation — 
one  creating  offences  unknown  to  the  laws,  subjecting  persons 
committing  them,  or  guilty  of  any  disloyal  practice,  to  martial 
law,  and  suspending  the  writ  of  habeas  corpus — burst  upon  the 
country,  as  if  it  were  the  announcement  of  a  reign  of  terror ; — a 
reign  which  the  Secretary  of  War  was  prompt  to  inaugurate  as 
effectually  as  force  could  do  it,  by  orders  establishing  a  military 
police  all  over  the  land,  to  act  under  his  directions  in  making 
arrests  and  reporting  treasonable  practices. 

Among  the  most  vigorous  attacks  on  the  position  taken  by 
Curtis  and  Professor  Parker  was  one  made  in  a  letter  from  Pro- 
fessor Parsons,  published  in  the  Boston  Daily  Advertiser,  Octo- 
ber 24,  1862,  in  which  he  took  the  extreme  position  that  "Re- 
bellion has  no  rights.  No  rebel  has  any  right,  a  regard  to  which 
should  weaken  or  obstruct  any  military  measure  needed  to  subdue 
the  rebellion." 

This  reply  by  Parsons  at  once  made  him  widely  popular  among 
the  upholders  of  the  Administration. 

"Cambridge  against  Boston,  the  authoritative  judgment  of  the 
unsullied  patriot,  opposed  to  the  special  pleading  of  a  cotton  law- 


WAR  PERIOD.  279 

yer — public  opinion  in  favor  of  the  Dane  Professor  and  on  the 
side  of  humanity",  said  one  newspaper. 

As  the  fall  election  grew  nearer,  Parsons  became  more  and 
more  absorbed  in  politics.  The  fact  that  his  own  son  was  fight- 
ing at  the  front  gave  him  a  human,  immediate  personal  concern 
which,  he  claimed,  those  lacked  who  agreed  with  Parker.  Never- 
theless, both  men  were  conscientious  in  their  views  and  each 
according  to  his  own  light  was  teaching  the  noblest  forms  of 
patriotism.  How  radical,  however,  was  their  difference  may 
be  seen  from  the  tone  of  a  circular  issued  by  Parsons  to  the 
voters  of  the  Fourth  Congressional  District,  November  3,  1862. 
three  days  before  the  election,  in  which  he  stated  that  if  John  A. 
Andrew  was  defeated,  the  news  would  carry  as  much  joy  to  the 
rebels  as  if  they  had  met  and  beaten  in  battle  the  regiments  from 
Massachusetts — that  there  were  only  two  parties,  and  that  the 
third  party  was  really  working  for  the  rebels. (i) 


(i)  "If  it  had  been  intimated  to  me,  a  short  time  since,  that  I  might 
become  willing  to  enter  into  a  political  contest,  and  address  my  fellow- 
citizens  with  my  pen,  it  would  have  seemed  to  me  exceedingly  improb- 
able. Why  do  I  this  thing  now  ?  Because  it  is  utterly  impossible  for 
more  than  two  parties  to  exist  this  day  in  our  country,  and  to  one  or 
other  of  these  every  man  must  belong.  One  of  these  is  that  party,  how- 
ever composed,  which  assists  and  strengthens  the  Government.  The  other 
is  the  party,  however  composed,  which  obstructs  and  weakens  the  Gov- 
ernment. All  other  panics  are  mere  pretences  or  nullities,  except  so 
far  as  they  co-operate  with  one  or  the  other  of  the  two  real  parties.  To 
one  or  other  of  them  every  man  must  belong;  for  if  he  calls  himself 
neutral,  and  does  nothing,  he  adds  to  the  dead  weight  which  the  Gov- 
ernment must  drag  along;  and  there  is  no  need  to  increase  their  burthen. 

Do  you  wish  to  know  what  party  works  with  the  Government  and 
against  the  rebels,  and  what  party  works  against  the  Government  and  with 
the  rebels?  It  is  easy  to  find  this  out. 

Is  not  every  one  of  you  certain,  yes,  certain,  that  if  John  A.  Andrew 
is  defeated  on  Tuesday,  the  news  will  flash  along  the  wires  from  Rich- 
mond into  every  corner  of  the  Confederacy,  and  everywhere  carry  as 
much  joy  as  if  the  rebels  had  met  the  regiments  of  Massachusetts  and 
beaten  them  in  battle?  and  that  defeat  of  Samuel  Hooper,  the  Republican 
candidate  for  Congress  in  our  District,  must  produce,  and  ought  to  pro- 
duce, an  effect  of  a  like  kind. 

If  your  votes  give  the  rebels  assurance  that  a  construction  of  the 
Constitution  prevails  in  Massachusetts  which  makes  it  put  a  sword  in 
the  hands  of  the  President,  and  commands  him  to  strike  the  rebellion, 
and  at  the  same  time  commands  him  to  be  very  careful  that  he  does  not 
strike  rebellion  to  the  heart,  what  more  could  you  do  to  give  aid  and 
comfort  to  the  rebels?  If  you  have  a  son  who  has  left  your  quiet  home, 
and  is  now  in  the  front  of  the  battle,  will  you  say  to  him :  "My  boy,  do 
your  duty!  and  when  the  charge  sounds,  rush  upon  the  foe.  If  you  cross 
bayonets  with  a  rebel,  prick  him  furiously  in  the  arms  and  legs,  and  if 
you  have  a  chance,  let  your  steel  glance  along  his  ribs;  but  however  he 
may  attack  you,  be  sure  you  do  not  thrust  him  through  the  heart,  for 
that  would  be  unconstitutional !"  And  this  is  the  meaning  of  the  argu- 


2So  HARVARD  LAW  SCHOOL. 

The  result  of  the  election  was  the  overwhelming  victory  of 
Sumner  and  Andrew.  Undismayed,  however,  Parker  followed 
up  his  Address  to  the  People  in  a  series  of  nine  letters  in  the 
Boston  Post,  Nov.  n,  1862,  to  Feb.  16,  1863,  by  a  keen,  merciless 
flaying  of  two  clergymen  who  had  attacked  his  position.  In  the 
first  of  these  letters  he  said : 

If  any  of  them  (his  protagonists)  have  D.  D.  attached  to 
their  names,  that  does  not  disqualify  them  from  being  also  A.  S. 
S.  and  mischief  makers  besides.  You  will  say,  perhaps,  that  it  is 
undignified,  to  speak  thus  of  dignitaries.  I  am  almost  inclined  to 
admit  it.  But  when  one  is  striving  to  abate  a  nuisance,  one  must 
not  stand  on  his  dignity." 

In  another  he  indignantly  maintained : 

The  duty  of  vindicating  the  right  of  gentlemen  of  the  Bar  to 
form  their  opinions  upon  legal  subjects  and  especially  upon  the 
construction  of  the  United  States  and  to  express  these  opinions 
in  any  manner  consistent  with  due  courtesy  to  others,  without 
being  subjected  to  censure,  sneers,  abuse  and  vituperation  by  a 
class  of  clergymen  who  assume  to  know  more  of  Constitutional 
Law  than  the  tribunals  and  officers  created  and  constituted  for  the 
purpose  of  discussing  and  determining  legal  questions. 

Parker's  views  on  this  subject  were  apparently  strengthened 
by  the  attacks  which  were  made  on  him  and  on  Judge  Curtis ;  and 
finally,  in  an  address  delivered  before  the  National  Club  of  Salem 
March  13,  1863,  on  the  War  Powers  of  Congress  and  of  the 
President,  he  stated  most  elaborately  the  legal  grounds  for  oppo- 

ment  addressed  to  you,  denying  the  constitutional  power  of  the  Presi- 
dent to  issue  his  recent  Proclamation. 

A  great  man  who  lived  in  England  a  good  many  years  ago,  when  there 
were  great  men  in  England,  said,  "When  the  wicked  conspire,  it  is 
time  for  good  men  to  unite."  The  wicked  leaders  of  rebellion  cling  to- 
gether in  a  conspiracy  which  has  the  solidity  of  steel.  Is  the  union  of 
our  good  men  so  loose  at  every  joint,  that  it  is  shattered  by  every  dif- 
ference of  opinion,  and  falls  to  pieces  before  the  old  party  and  personal 
hatreds  which  we  thought  were  dead,  when  they  were  only  sleeping  to 
recruit  their  strength?  I  do  not  know  how  this  is,  but  by  Tuesday  night 
I  shall  know. 

At  this  hour,  Constitutional  Government  and  rebellion  have  met  in  a 
death  struggle.  Both  cannot  come  out  of  it  alive.  Which  shall  die?  Only 
the  Supreme  Ruler  of  events  can  answer  this  question.  But  there  is  an- 
other question  which  the  hour  asks  of  every  one  of  us,  and  which  every 
one  of  us  may  and  must  answer,  and  will  answer  on  Tuesday.  It  is, 
which  side  shall  I  help? 

Before  my  eyes  this  great  question  ever  stands.  Before  all  eyes  it 
should  stand.  And  in  its  fearful  presence  all  minor  questions,  all  old 
names  and  all  old  differences  should  disappear  and  die." 


WAR  PERIOD.  281 

sition  to  the  President's  Proclamations  emancipating  the  slaves, 
suspending  the  writ  of  habeas  corpus,  and  declaring  martial  law. 
He  gave  especial  consideration  to  Horace  Binney's  legal  defence 
of  the  President,  and  the  treatise,  then  recently  published,  en- 
titled The  War  Powers  of  the  President  and  the  Legislative 
Powers  of  Congress  in  Relation  to  Rebellion,  Treason  and 
Slavery,  by  William  Whiting,  a  prominent  patent  lawyer  of  Bos- 
ton who  had  been  made  a  solicitor  for  the  War  Department.  The 
doctrines  laid  down  in  his  book  were  sarcastically  designated  by 
Parker  as  "Patent  War-office  Constitutional  Law". 

Of  Parker's  political  lectures  to  his  students,  the  following 
sympathetic  description  has  been  given  by  a  student  in  the  School, 
Daniel  H.  Chamberlain  (L.  S.  1862-4),  later  Governor  of  South 
Carolina(i)  : 

Professor  Parker  was  one  of  the  most  remarkable  men  whom 
I  have  ever  become  closely  acquainted  with ;  and  I  want  to  say 
a  word  about  him ;  not  so  much  to  vindicate  his  memory,  because 
the  day  of  vindication,  if  it  ever  existed  is  passed,  but  I  hap- 
pened to  be  here  in  the  early  flush  of  the  war  excitement.  I 
listened  to  the  constant  criticisms  which  the  old  judge  felt  called 
upon  to  make  upon  the  current  events — upon  the  suspension  of 
the  habeas  corpus  by  President  Lincoln  and  the  Emancipation 
Proclamation,  and  we  thought  to  ourselves  sometimes,  that  this 
kind  of  criticism  was  a  hindrance  to  the  great  cause  which  was 
then  trembling  in  the  balance.  Well,  I  don't  know,  gentlemen, 
but  it  was.  I  think  there  are  times  when  constitutional  criticism 
and  constitutional  effects  must  be  held  a  little  loosely,  when  the 
life  of  the  country  is  at  stake.  But  no  man  who  remembers  Pro- 
fessor Parker,  if  he  doubted  then,  now  doubts  that  the  old  man's 
heart  was  as  true  to  his  country  and  to  the  permanency  of  the 
Union  as  that  of  the  youngster  who  criticised  him.  I  remember 
a  very  brief  anecdote.  We  were  accustomed  to  ask  questions,  to 
interrupt  the  most  learned  and  eloquent  periods  with  our  upstart 
questions,  and  on  this  occasion  the  judge  had  been  alluding  to  the 
constitutional  provision  respecting  the  suspension  of  the  habeas 
corpus ;  and  one  very  ardent  youth,  who  was  listening  and  who 
had  caught  the  war  excitement,  suddenly  started  up  with  the 
question,  "Professor  Parker,  if  you  saw  a  man  striking  down 
the  American  flag,  caught  him  in  the  act,  would  not  you  suspend 
the  habeas  corpus?" — and  instantly  came  back  the  answer  of  the 
brave  old  man,  "No,  sir,  I  would  not  suspend  the  habeas  corpus, 
but  I  would  suspend  the  corpus." 

(i)  Speech  at  the  Dinner  of  the  Harvard  Law  School  Association, 
1891. 


282  HARVARD  LAW  SCHOOL. 

In  March,  1863,  Professor  Parsons  issued  a  pamphlet  on 
Slavery,  its  Origin,  Influence  and  Destiny,  in  which  he  developed 
the  proposition  that  "while  in  my  judgment  the  Constitution  has 
not  yet  been  violated  in  any  way  or  to  any  extent  greater  or  less, 
if  the  Constitution  must  be  disregarded  to  preserve  our  nation- 
ality then,  with  as  much  love  and  reverence  for  the  Constitution 
as  my  nature  is  capable  of,  I  should  still  say,  our  nationality  must 
not  be  lost,  and  rebellion  must  not  prevail." 

Meanwhile  the  Law  School,  notwithstanding  the  political  ac- 
tivity of  its  Professors,  was  continuing  its  course  of  instruction, 
although  with  a  smaller  body  of  students.  At  the  first  term  of 
the  year  1861-62,  there  were  103  students ;  at  the  second  or 
spring  term  the  number  fell  to  78. (i) 

The  School  met  with  a  severe  loss,  through  the  death  of  Chief 
Justice  Lemuel  Shaw,  March  30,  1861.  For  twenty-two  years 
Shaw  was  a  member  of  the  Board  of  Overseers,  and  for  twenty- 
seven  years  a  Fellow  of  the  Corporation.  In  1860,  he  had  re- 
signed as  Chief  Justice  of  Massachusetts.  To  use  President 

Felton's  words  (2)  : 

< 

He  was  a  scholar  of  liberal  tastes  and  large  acquirements ;  a 
magistrate,  universally  regarded  as  a  pillar  of  the  Common- 
wealth. With  these  high  and  manly  powers  and  qualities,  Judge 
Shaw  possessed  a  disinterested  and  generous  disposition,  and  a 
heart  as  tender  as  a  child's.  During  his  long  life  he  manifested 
on  all  occasions  the  warmest  filial  devotion  to  the  University,  the 
mother  of  his  mind.  In  the  official  relations  which  he  sustained 
till  the  day  of  his  death,  he  gave  his  time,  his  best  thoughts,  his 
labors,  freely  and  unsparingly  to  her  service.  Important  sub- 
jects of  a  business  character  connected  with  the  University  were 
among  the  last  that  occupied  his  intellectual  faculties ;  and  a  meet- 
ing of  the  corporation  had  been  appointed  to  be  held  at  his  house 
on  the  3Oth  of  March,  the  day  of  his  death. 

His  constant   and   detailed   interest   in   the   administration   of 
the  Law  School  had  been  particularly  marked  and  valuable. 
Francis  B.  Crowninshield  was  elected  to  fill  the  vacancy.     To 


1 i )  The  following  vote  of  the  Corporation  regarding  one  of  the  stu- 
dents, is  of  interest. 

April  27,  1861  Voted,  that  Mr.  Henry  Schauffler,  now  preparing 
himself  to  be  Professor  of  the  Law  in  the  American  College  about  to 
be  established  near  Constantinople  for  the  higher  education  of  the  races 
that  constitute  the  Turkish  Empire,  be  permitted  to  join  the  Law  School 
and  receive  instruction  with  all  the  other  privileges  of  a  member  of  the 
same,  free  of  charge. 

(2)  See  President's  Annual  Report,   18(10-61. 


Theophilus  Parsons 


WAR  PERIOD.  283 

offset  this  intellectual  loss,  the  Law  School  at  this  time  began  to 
receive  a  substantial  financial  gain — through  the  magnificent 
Bussey  bequest.  Since  Mr.  Bussey's  death,  in  1842,  the  estate 
had  been  in  the  hands  of  trustees.  On  February  23,  1861,  how- 
ever, the  Committee  of  the  Corporation  relating  to  the  Bussey 
bequest,  E.  Rockwood  Hoar  and  Amos  A.  Lawrence,  reported, 
advising  the  College  to  take  over  the  property  from  the  trustees 
and  to  assume  certain  annuities  charged  upon  it.  They  stated 
that  the  property  on  April  30,  1860,  was  valued  at  $506,721.80, 
from  which  should  be  deducted  a  debt  of  $30,000  and  the  value 
of  unproductive  land  on  West  Roxbury  of  $71,598.73,  leaving  a 
net  balance  of  $405,123.07;  that  the  income  was  $32,130  and  an- 
nuities payable  $9,300(1).  The  Corporation  thereupon  voted  to 
take  over  the  property,  and  to  constitute  it  the  Bussey  Fund, 
5  per  cent,  interest  to  be  allowed  on  income.  One-half  of  the 
income  was  to  be  invested  as  the  Bussey  Institution  Income  Fund, 
the  other  half  "to  be  annually  appropriated  for  the  use  of  the 
Theological  and  Law  Schools,  one-half  to  each  respectively,  in 
such  manner  as  the  Corporation  shall  direct." 

On  February  24,  1862,  E.  R.  Hoar  and  F.  B.  Crownin- 
shield  were  appointed  as  a  committee  to  consider  and  report  what 
disposition  shall  be  made  of  that  part  of  the  income  of  the  Bussey 
fund  which  is  appropriated  for  the  benefit  of  the  Law  School." 

President  Cornelius  O.  Felton  died,  February  27,  1862 ;  and  on 
April  26,  Thomas  Hill  was  elected  his  successor.  On  May  31, 
Hoar  and  Crowninshield  made  the  following  interesting  re- 
port as  to  the  disposition  of  the  Bussey  income  in  the  Law 
School : 

That  they  met  the  Professors  of  the  Law  School  and  held  a 
full  and  satisfactory  conference  in  relation  to  the  condition  and 
wants  of  that  department  of  the  University. 

The  language  of  the  will  of  Mr.  Bussey  is  comprehensive 
enough  to  give  the  widest  latitude  to  the  discretion  of  the  Cor- 
poration in  the  use  of  the  income  of  the  fund  which  he  appropri- 
ated for  the  benefit  of  the  Law  School. 

It  is  given  for  "the  encouragement  and  promotion  of  legal 
education  in  said  college  by  the  endowment  of  professorships  or 
scholarships  in  the  Law  School ;  by  the  purchase  of  books,  erec- 
tion of  buildings,  and  by  such  other  means  as  may  in  the  judg- 
ment of  the  President  and  Fellows  render  the  income  of  the 


(i)     In  the  Treasurer's  Report   (1861),  the  valuation  is  given  as  $413,- 
290.67,  besides   the   Roxbury   Estate   valued  at  $65,000. 


284  HARVARD  LAW  SCHOOL. 

property  hereby  appropriated  most  available  in  the  accomplish- 
ment of  the  objects  proposed." 

The  number  of  students  attending  the  School  has  been  ma- 
terially affected  by  the  war,  and  the  funds  belonging  to  it  have 
been  considerably  impaired  by  the  unfortunate  investment  in  the 
Brattle  House.  Nearly  all  the  resources  at  command  will  there- 
fort  be  needed  for  the  present  to  maintain  the  School  in  the  exist- 
ing state  of  efficiency,  and  we  think  it  best  to  apply  the  income  of 
the  Bussey  Fund,  for  the  most  part,  to  supply  the  wants  of  the 
Institution  as  now  conducted,  rather  than  to  attempt  to  extend 
its  scale  of  operations. 

But  the  benefaction  of  Mr.  Bussey  is  so  large  and  important 
that  we  think  it  should  not  be  absorbed  in  the  current  expenses 
of  the  School  without  something  to  mark  the  source  from  which 
it  is  derived,  and  to  do  honor  to  his  name  and  memory.  We  have 
had  this  object  in  view  in  the  appropriation  of  the  fund  which  we 
recommended,  and  have  only  regarded  the  specific  objects  enumer- 
ated by  him  as  specially  contemplated  in  the  disposal  of  his 
bounty. 

The  Committee's  recommendation,  urging  a  change  in  the  name 
of  the  University  Professor  to  that  of  Bussey  Professor,  and 
various  other  matters,  were  embodied  by  the  Corporation  in  the 
following  votes : 

Fated  that  (i)  The  prizes  for  dissertations  in  the  Law 
School  shall  hereafter  be  termed  "The  Bussey  Prizes  for  Dis- 
sertations", and  the  sum  of  two  hundred  dollars  shall  be  annu- 
ally applied  from  the  income  of  the  Bussey  fund  appropriated  to 
the  Law  School  to  the  payment  of  these  prizes. (2)  Five  hun- 
dred dollars  shall  be  annually  appropriated  from  the  income  of 
the  Bussey  fund  belonging  to  the  Law  School  for  the  purchase  of 
books  of  permanent  value  for  the  Law  Library;  and  in  each 
book  so  purchased  shall  be  pasted  a  label  containing  these  words : 
"From  the  fund  given  by  Benjamin  Bussey." 

(3)  The  University  Professorship  of  Law  shall  henceforth 
be  known  and  named  as  the  Bussey  Professorship  of  Law ;  and 
the  present   University   Professor  of   Law   shall   henceforth   be 
called  the  Bussey  Professor  of  Law ;  and  he  shall  give  such  lec- 
tures and  instructions  and  upon  such  branches  of  the  Law,  and 
perform  such  duties  in  the  Law  School  as  shall  from  time  to  time 
by  any  statutes  and  orders  be  assigned  to  or  required  of  the 
Bussey  Professor  of  Law|     Until  further  order,  the  duty  of  the 
Bussey  Professor  of  Law  and  the  salary  to  be  paid  to  him  shall 
be  the  same  as  those  heretofore  assigned  to  the  University  Pro- 
fessor of  Law. 

(4)  The  sum  of  One  thousand  dollars  shall  be  annually  ap- 
plied toward  the  payment  of  the  salary  of  the  Bussey  Professor 


WAR  PERIOD.  285 

of  Law  from  the  income  of  the  Bussey  fund  belonging  to  the  Law 
School  until  the  further  order  of  the  Corporation. 

The  income  of  the  Bussey  Fund  not  otherwise  appropriated 
shall  be  annually  funded  as  an  endowment  of  the  Bussey  Pro- 
fessorship of  Law  until  the  further  order  of  the  Corporation. 

The  vote  as  to  the  Bussey  Professorship  was  considered  by  the 
Overseers  on  June  19,  1862 ;  and  on  that  date  Professor  Wash- 
burn  became  the  first  Bussey  Professor. 

Before  the  inauguration  of  the  new  year  of  the  Law  School. 
1862-63,  tne  battles  of  Shiloh  and  Antietam  had  been  fought 
(April  7  and  September  15,  1862)  ;  the  famous  fight  between  the 
Monitor  and  the  Merrimack  had  occurred  on  May  n,  1862; 
and  on  September  22,  Lincoln  had  issued  his  Emancipation  Proc- 
lamation. 

An  increase  in  the  prosperity  of  the  School  could  hardly  be 
expected  in  such  times,  and  the  authorities  were  satisfied  if  the 
School  held  its  own.  The  Professors  stated  in  their  Report  of 
December  31,  1862,  that  there  was  no  essential  change  except  in 
number  of  students : 

It  was  but  a  matter  of  course  that  the  political  and  sectional 
controversies  which  preceded  the  war  and  which  followed  the 
financial  embarrassments  of  1857-8  should  affect  the  School  to 
some  extent.  But  notwithstanding  these  adverse  circumstances 
the  number  of  students  in  the  autumn  term  of  1859  was  175,  the 
largest  number  ever  in  attendance  at  one  time.  The  war  has 
greatly  reduced  the  number,  partly  by  reason  of  the  further  em- 
barrassments of  business  which  always  affect  the  Law  School 
much  more  than  the  Academic  Department,  but  still  more  through 
the  patriotism  which  has  induced  many  young  men  who  were 
members  of  the  School,  and  others  who  would  have  joined,  to 
enter  the  army. 

At  the  spring  term  of  1862,  there  were  only  78  students;  but 
at  the  ensuing  fall  term,  the  number  had  increased  to  92,  from  20 
States,  New  Brunswick,  Turkey,  and  Hawaiian  Islands.  In  the 
spring  term  of  1863,  the  number  fell  to  80. 

During  the  summer  of  1863,  on  July  4,  occurred  the  battle  of 
Gettysburg,  and  the  capture  of  Vicksburg.  On  July  18,  Col. 
Robert  Quincy  Shaw  fell  at  Fort  Wagner.  In  this  same  month, 
on  July  14,  the  city  of  Boston  had  been  thrown  into  a  state  of 
great  excitement  by  the  Cooper  Street  draft  riot. (i) 

(i)  For  excellent  account  of  this,  see  the  case  of  Commonwealth  v. 
Campbell,  7  Allen  541  (1863). 


286  HARVARD  LAW  SCHOOL. 

The  new  academic  year  of  the  Law  School,  (1863-64),  began 
with  a  large  increase  in  attendance,  the  number  rising  from  80  in 
the  preceding  spring  to  129  :  and  during  the  second  or  spring  term 
of  1864  the  number  was  115,  from  eighteen  of  the  United  States, 
Canada  West,  Canada  East,  New  Brunswick,  Nova  Scotia,  Dis- 
trict of  Columbia  and  the  Hawaiian  Islands. 

On  July  20,  1864,  the  Corporation  and  the  Board  of  Overseers 
voted  to  appoint  Edward  Everett  to  lecture  in  the  Law  School 
during  the  next  academic  year  upon  the  Law  of  Nations.  (Everett 
died,  however,  on  January  16,  1865,  before  entering  upon  his 
duties.)  Three  months  later,  October  16,  1864,  Roger  B.  Taney, 
Chief  Justice  of  the  United  States  Supreme  Court  died,  after  a 
term  of  service  of  twenty-nine  years,  and  Salmon  P.  Chase  be- 
came his  successor. 

The  growth  in  the  attendance  at  the  Law  School  during  1864-65 
showed  the  approaching  close  of  the  war ;  and  the  School  opened 
with  138  students,  thus  "reaching  the  full  average  of  the  at- 
tendance prior  to  1859" — so  the  Law  Faculty  reported,  December 
28,  1864.  At  the  next  spring  term  of  1865,  there  were  131, 
from  23  States,  the  District  of  Columbia,  New  Brunswick  and 
Nova  Scotia. 

February  i,  1865,  was  memorable  in  the  annals  of  lawyers  for 
the  admission  to  practice  before  thte  Bar  of  the  United  States 
Supreme  Court  of  the  first  negro  lawyer,  G.  S.  Rock,  his  sponsor 
being  Charles  Sumner. 

On  April  9,  1865,  General  Lee  surrendered  to  General  Grant 
at  Appomattox,  and  on  April  14,  President  Lincoln  was  assassin- 
ated. 

On  July  21,  1865,  occurred  Commemoration  Day  at  Harvard — 
the  most  notable  celebration  in  the  history  of  the  College.  The 
exercises  were  held  in  the  Unitarian  Church,  and  there  James 
Russell  Lowell  delivered  his  famous  Commemoration  Ode,  and 
Rev.  Phillips  Brooks  his  wonderfully  eloquent  prayer.  At  the 
dinner  given  in  a  large  pavilion  at  the  rear  of  Harvard  Hall, 
addresses  were  made  by  General  Francis  C.  Barlow,  General 
Charles  Devens,  General  William  F.  Bartlett,  Governor  Andrew, 
President  Thomas  Hill,  Major  General  Meade,  Rear  Admiral 
Gherardi  Davis,  Ralph  Waldo  Emerson  and  others;  and  there 
were  poems  by  Dr.  Oliver  Wendell  Holmes  and  Mrs.  Julia  Ward 
Howe. 

With  those  who  attended  the  College  and  the  Law  School 


WAR  PERIOD.  287 

during  these  stirring  years  of  the  war,  the  memory  of  events  is 
ineradicable.  Perhaps  the  most  vivid  resume  of  the  general  im- 
pressions produced  upon  the  student  of  those  days  is  that  given 
by  Moorfield  Story  who  graduated  from  the  College  in  1866  (L. 
S.  1866-67)  (i):  ' 

When  the  members  of  my  class  first  presented  themselves  in 
July,  1862,  the  darkest  days  of  the  war  were  upon  us.  The  Pen- 
insular Campaign  with  its  heart  breaking  delays,  its  desperate  but 
ineffectual  battles,  its  ultimate  failure  was  just  ended.  Cedar 
Mountain  and  the  Second  Bull  Run  were  to  come.  On  Bloody 
Monday  night,  while  we  were  thinking  of  possible  football  or 
some  other  encounter  with  sophomores,  the  campaign  was  be- 
ginning that  was  to  end  a  fortnight  later  at  Antietam ;  and 
Lincoln  was  waiting  for  that  victory  to  strengthen  his  arm  before 
he  issued  the  first  proclamation  of  emancipation.  .  .  .  Every 
Commencement  Day,  every  College  festival  was  full  of  inspira- 
tion ;  and  the  daily  newspaper  with  its  chronicle  of  battles  in 
which  Harvard  men  had  won  honor  or  had  laid  down  their  lives 
made  its  more  direct  appeal.  I  can  recall  no  more  impressive 
scene  than  the  military  funeral  of  the  heroic  Patten  in  Appleton 
Chapel,  and  the  venerable  form  of  ex-President  WTalker  as  he 
took  his  place  in  the  pulpit — and  his  tremulous  tones  as  he  began 
his  reading  with  the  words  "The  beauty  of  Israel  is  slain  on  thy 
high  places."  ...  I  stand  before  Holworthy  on  the  morning 
when  Lee's  surrender  was  announced  and  hear  the  songs  and 
cheers  with  which  the  whole  College,  released  from  discipline, 
celebrated  the  good  news. 

.  .  .  I  remember  more  vividly  than  anything  that  hap- 
pened yesterday,  how  on  my  way  to  prayers  and  twenty  feet  from 
the  old  Massachusetts  pump,  I  met  my  classmate  who  told  me  the 
news  of  Lincoln's  assassination  on  Friday  night ;  and  I  hear 
through  the  windows  of  the  room  in  University,  while  the  Latin 
recitation  is  going  on,  the  tolling  of  the  bells  wrhich  announced 

the  President's  death I  sat  in  the  great  tent  spread 

between  Harvard  Hall  and  Holden  Chapel,  and  witnessed  the 
Harvard  Commemoration :  saw  Bartlett  rise  to  speak,  and  pause 
unable  to  proceed,  until  Colonel  (Henry)  Lee  came  to  his  relief 
and  bade  him  be  seated,  since  his  modesty  was  only  equalled  by 
his  valor ;  and  heard  Lowell  read  for  the  first  time  the  Com- 
memoration Ode,  which  must  always  remain  for  everyone  who 
heard  it,  a  source  of  inspiration. 


(l)  See  Harvard  College  in  the  Sixties,  by  Moorfield  Story — Harv. 
Graduates  Magazine  Vol.  V  (1896-97). 

See  also  Reminiscences  of  Gen.  II'.  F.  BartleU  and  Harvard  Com- 
memoration, by  C.  W.  Clifford — Harvard  Graduates  Magazine,  Vol.  Ill 

(1895). 
See  also  Life  of  Henry  Lee,  by  John  T.  Morse,  Jr. 


288  HARVARD  LAW  SCHOOL. 

When  the  question  of  reconstruction  began  to  rage  bitterly 
in  Northern  politics,  immediately  after  the  close  of  the  war,  Pro- 
fessor Parsons  again  took  an  active  part  in  the  agitation,  writing 
several  vigorous  letters  to  the  public  press,  entitled  The  Perils  of 
Peace.  He  was  in  hearty  sympathy  with  Sumner,  Wendell 
Phillips,  and  other  extremists  who  insisted  on  the  most  rigorous 
treatment  of  the  Southern  States  until  equal  suffrage  for  whites 
and  negroes  should  be  surely  guaranteed. 

Of  the  great  reconstruction  meeting  in  Boston  on  June  21, 
1865,  just  one  month  before  the  Harvard  Commemoration  Day,  a 
vivid  account  is  given  in  the  Life  of  George  Luther  Stearns. 

Stearns  was  a  relative  of  Professor  Asahel  Stearns,  and  one 
of  the  most  earnest  and  earliest  of  the  Free  Soilers  and  Abolition- 
ists. He  had  been  one  of  the  founders  of  the  Nation,  in  New 
York  in  1865,  the  chief  object  of  which  was  to  advocate  recon- 
struction with  just  conditions  for  the  negro.  His  meeting  with 
Parsons  and  its  result  are  thus  described  by  his  biographer  ( i )  : 

At  a  certain  party  in  Cambridge  connected  with  the  affairs  of 
the  Nation  he  met  James  Russell  Lowell,  who  seemed  to  be  sur- 
prisingly ill-informed  concerning  public  affairs,  and  also  Pro- 
fessor Parsons  of  the  Law  School,  whom  he  found  to  be  no 
university  fossil,  but  a  live  man  with  a  heart  in  him  and  a  mind 
of  his  own.  They  had  such  an  agreeable  conversation  that  the 
Professor  invited  Mr.  Stearns  to  call  at  his  house  and  continue 
their  discussion.  This  Mr.  Stearns  did  a  few  days  later.  .  .  . 
Theophilus  Parsons  was  a  man  of  conservative  tendencies,  a 
friend  and  admirer  of  Webster,  but  as  stout  a  patriot  as  old  John 
Adams.  He  always  considered  the  Fugitive  Slave  Bill  a  political 
blunder  and  was  not  surprised  at  the  consequence  of  it.  He  was 
not  a  hide  bound  conservative  but  a  growing  man  at  sixty,  and 
Mr.  Stearns  found  great  agreement  with  the  plan  of  reconstruc- 
tion, which  he  expanded  before  him.  He  urged  the  Professor  to 
write  out  his  statement  and  publish  rt — Professor  Parsons  did 
not  know  where  he  could  publish  it.  He  was  not  "in  the  ring" ; 
the  North  American  Review  was  closed  to  him;  and  as  for  the 
newspapers,  there  was  too  much  uncertainty  about  them.  Mr. 
Stearns  rose  and  walked  the  floor.  "There  must  be  a  way,"  he 
said.  Then  suddenly :  "Write  out  your  statement.  My  friends 
and  I  will  call  a  meeting  in  Faneuil  Hall  and  I  will  obtain  fifty 
of  the  best  names  in  Boston  for  Vice-Presidents  and  you  shall  be 
President  of  the  meeting." 

No  sooner  said  than  done.     Everybody  fell  into  line  as  if  by 

(i)     Life   and   Public   Services   of   George   Luther   Stearns,   by    Frank 
P.  Stearns   (1907). 


Richard  H.  Dana 


WAR  PERIOD.  289 

magic.  Forbes,  Endicott  and  Atkinson  were  delighted.  Mer- 
chants like  Alpheus  Hardy  and  Henry  Lee  signed  the  call.  .  .  . 
Never  was  Webster  supported  by  a  more  solid  phalanx.  The 
meeting  was  held  on  the  2ist  of  June  and  Faneuil  Hall  was 
crowded.  Professor  Parsons'  address  was  nearly  equal  to  the 
best  of  Webster's  oration — so  clear  was  his  thought,  so  cogent 
his  reasoning  and  emphatic  his  delivery. (i) 

Professor  Washburn  was  one  of  the  Vice-Presidents  of  this 
meeting.  Professor  Parker  did  not  share  his  colleagues'  views 
on  the  reconstruction  question,  and  he  expressed  his  own 
opinions  on  that  and  allied  subjects  with  his  accustomed  vigor 
in  several  lectures  delivered  to  the  students  in  January,  1865,  and 
January  1866,  on  Revolution  and  Reconstruction,  and  also  in 
magazine  articles  and  lectures  in  1867,  1868  and  1869  on  Three 
Powers  of  Government. 

At  the  beginning  of  the  year  1865-66,  the  close  of  the  war 
brought  a  great  tide  of  law  students,  the  number  advancing  to 
177,  and  153  in  the  second  or  spring  term  of  1866,  from  24  States, 
the  District  of  Columbia,  New  Brunswick  and  Nova  Scotia.  To 
this  growing  prosperity  of  the  School  was  due  the  vote  of  the 
Corporation,  December  15,  1865,  increasing  the  salary  of  Parker, 
as  Royall  Professor,  to  $3,000.  On  January  27,  1866,  the  Cor- 
poration appointed  the  President  and  Judge  Hoar  as  a  Committee 
to  consider  the  salaries  and  duties  of  the  Law  Professors ;  and  on 
March  31,  1866,  appointed  Richard  H.  Dana,  Jr.,  as  Lecturer  on 
the  Law  of  Nations,  to  give  ten  lectures,  at  a  salary  of  $1,000(2). 
Dana's  lectures  were  so  satisfactory  to  the  students  that  he  re- 
ceived a  re-appointment  as  Lecturer  on  October  26,  1867,  giving 
in  that  year  two  courses,  instead  of  one. 

The  year  1866-67  opened  with  167  students,  and  120  in  the 

(1)  Parsons  concluded  his  speech  as  follows: 

"And  we  declare  it  to  be  our  belief  that  if  the  Nation  admits  a  rebel 
State  to  its  full  functions  with  a  Constitution  which  does  not  secure  to  the 
freedom  the  right  of  suffrage  in  such  manner  as  to  be  impartial  and  not 
based  in  principle  upon  color,  and  as  to  be  reasonably  attainable  by  intel- 
ligence and  character,  and  which  does  not  place  in  their  hands  a  substan- 
tial power  to  defend  their  rights  as  citizens  at  the  ballot  box  with  the 
right  to  be  educated,  to  acquire  homesteads,  and  to  testify  in  courts,  the 
Nation  will  be  recreant  to  its  duty  to  itself,  and  to  them,  and  will  incur 
and  deserves  to  incur  anger  and  reproach,  proportioned  to  the  magnitude 
of  its  responsibility." 

(2)  This  appointment  was  confirmed  by  the  Overseers  June  26,  1866, 
his  second  appointment  being  confirmed  January  9,  1868.     Dana  resigned 
his  position  as  United  States  District  Attorney  in   1866,  having  been  ap- 
pointed in  1861. 

10 


290  HARVARD  LAW  SCHOOL. 

spring  term  of  1867,  from  21  States,  District  of  Columbia,  New 
Brunswick  and  Nova  Scotia. 

It  may  be  of  interest  to  turn  at  this  point  from  dry  statistics 
and  annals,  to  a  feature  of  law  student  life  which  was  again  be- 
coming prominent.  The  old  Debating  Club,  the  Assembly  or 
Parliament  of  the  ante-bellum  days,  had  burnt  itself  out  at 
the  beginning  of  the  war,  by  the  very  heat  of  its  own  discussions. 
It  was  now  revived ;  and  the  following  articles,  appearing  in  the 
undergraduate  fortnightly  College  paper,  the  Harvard  Advocate, 
give  a  good  idea  of  this  Law  School  institution,  which  played  an 
important  part  in  the  life  of  the  day.  On  September  24,  1866, 
the  Advocate  said  ( i )  : 

Students  who  are  interested  in  politics  or  desirous  of  an  ac- 
quaintance with  the  niceties  of  parliamentary  law,  cannot  do 
better  than  to  drop  in  occasionally  at  the  session  of  the  Assembly 
of  the  Harvard  Law  School.  They  are  held  in  Dane  Hall  every 
Friday  evening.  The  Law  School  contains  many  men  of  decided 
talent  and  many  an  original  genius.  Representatives  of  every 
shade  of  politics  deliver  their  views  with  perfect  freedom,  and 
often  with  considerable  applause.  Last  Friday,  the  Assembly  or- 
ganized by  the  choice  of  Mr.  Horace  Graves  (Harvard  '64)  of 
Marblehead,  as  speaker,  by  a  small  majority  over  Mr.  Ambrose 
H.  Purdy  of  N.  Y.  This  result  is  supposed  to  indicate  the  su- 
perior strength  of  the  party  opposed  to  the  policy  of  the  admin- 
istration. 

On  April  10,  1867,  it  said  that (2)  : 

We  have  twice  been  to  the  Law  Parliament  of  late  and  thrice 
and  four  times  forcibly  impressed  with  the  profundity  and  acu- 
men of  the  embroyonic  judges  that  sit  there  in  sober  state — One 
night  they  debate  on  the  "State  of  the  Law  School" ;  and  again, 
determined  to  reach  the  very  root  of  the  matter  and  moreover 
duly  impressed  with  the  fact  that  their  own  extensive  experi- 
ence should  have  mighty  weight  in  State  Legislation,  the  "Com- 
mittee of  the  Whole"  "gets  leave  to  rise  and  set  again"  on  the 
Law  School's  resolutions,  calling  for  a  License  Law.  A  young 
proctor  they  elect  Sergeant  of  Arms  to  bring  aguish  members  to 
the  bar  of  the  house  (a  ticklish  business  this  to  the  bar  of  any 
house),  and  counsel  are  chosen  to  examine  witnesses.  All  goes 
merrily ;  and  the  harmonious  conclusion  is  deduced  that  the  only 
effect  of  the  Prohibitory  Law  is  to  stimulate  high  prices  and 
poor  whiskey  which  is  a  curse  to  the  land. 

(1)  Harvard  Advocate,  Vol.  II. 

(2)  Harvard  Advocate,  Vol.  III. 


WAR  PERIOD.  291 

A  picturesque  personality,  well  known  to  the  law  students  of 
those  days,  and  for  twenty  years  later,  is  described  in  another 
article,  December  n,  1866 — Daniel  Pratt — the  "Great  American 
Traveller" — whose  bombastic  and  meaningless  phrases  like — "We 
live  in  the  future  of  the  past" — "the  unity  and  equilibrium  of  the 
Universe  always  to  be  sustained",  and  whose  orations  on  The 
Incomprehensibility  of  Nothingness  and  The  Plentitude  of  a 
Molecule's  Eyeball  still  linger  in  the  memory  of  many. 

The  announcement  that  Daniel  Pratt,  the  Great  American 
Traveller,  would  deliver  a  poetical  oration  upon  the  laws  of 
the  Universe  and  the  "Analogy  of  the  Soil  and  the  Soul"  at  Dane 
Hall  November  16,  induced  a  majority  of  the  members  of  the 
Law  School  and  quite  a  number  of  undergraduates  to  assemble 
in  the  Parliament  Room  at  the  appointed  time. 

It  ended  in  the  unfortunate  man  fleeing  in  fear  of  arrest  and 
pursued  by  a  thoughtless  crowd. (i) 

The  year  1867-68  began  with  125  students,  and  in  the  spring 
term  of  1868  "they  came  from  every  part  of  the  Union,  about 
twenty-five  States,  on  an  average,  being  represented  each  year; 
so  that  there  is  no  extravagance  in  regarding  the  School,  thus 
constituted,  as  one  of  the  instrumentalities  that  must  help  to  pro- 
mote a  good  understanding  between  the  different  sections  of  the 
country."  (2) 

During  the  year  1868,  the  political  situation  growing  out  of 
the  struggle  between  President  Johnson  and  Congress  over  re- 
construction measures  excited  much  interest  in  the  Law  School; 
and  bitter  political  debates,  recalling  those  which  took  place  in 
anti-slavery  times,  again  arose  in  the  Assembly  or  Parliament 
of  the  School. 

The  debates  were  described  by  Horace  R.  Cheever  in  a  letter 
to  the  Boston  Daily  Advertiser,  June  9,  1868 : 

Twice  during  the  present  term  have  political  questions  been 
fairly  before  the  Assembly.  Early  in  the  term,  while  Mr.  John- 
son was  on  trial,  a  resolution  was  introduced  to  the  effect  that 
"no  officer  of  the  government  ought  to  be  impeached  for  violation 
of  a  law  of  doubtful  constitutionality". 

(The  resolution  was  lost). 

Close  upon  this  was  a  resolution  which  declared  that  the  re- 

(1)  Harvard  Advocate,  Vol.   II. 

(2)  Report  of  Visiting  Committee  to  Board  of  Overseers. 


292  HARVARD  LAW  SCHOOL. 

construction  policy  of  Congress  is  unconstitutional  and  impolitic 
and  that  it  ought  not  to  be  enforced;  and  this,  after  a  zealous 
debate  through  seven  evenings,  was  lost.  The  Assembly  is  and 
has  been  for  the  whole  year  Republican ;  and  we  have  with  a  full 
house  a  good  working  majority. 

The  letter  above  quoted  was  inspired  by  an  amusing  episode  in 
the  Assembly.  At  a  meeting  on  June  5,  the  Democratic  members 
being  temporarily  in  the  majority,  owing  to  absence  of  many 
Republicans,  had  hurried  through  the  following  vote : 

"Resolved,  that  the  Assembly  congratulate  President  Johnston 
upon  the  result  of  the  late  impeachment  trial"  This  stirred 
Cheever,  the  Speaker  of  the  Assembly,  "in  behalf  of  the  Republi- 
can majority  of  the  Assembly",  to  write  the  above  letter,  full  of 
indignation,  and  saying: 

We  make  this  explanation  because  we  are  unwilling  that  the 
stealthy  action  of  a  minority  shall  be  taken  as  an  expression  of 
the  sentiments  of  the  majority  in  behalf  of  one  whom  it  has 
twice  refused  to  endorse  and  whom  an  overwhelming  majority  of 
the  people's  representatives  have  pronounced  to  be  an  unworthy 
successor  of  an  illustrious  patriot  and  martyr. 

The  political  stress  of  the  day  again  cropped  out,  in  an  episode 
in  the  Assembly  at  its  first  meeting  in  the  fall  term  of  1868 — 
described  by  the  Commonwealth,  in  its  issue  of  Sept.  26,  1868, 
under  these  headlines,  Reconstruction  at  Harvard.  How  a  White 
Man's  Government  Didn't  Succeed  at  the  Law  School. 

Prejudice  against  color,  the  lingering  relic  of  slavery  still  exists 
among  us  and  crops  out  once  in  a  while.  The  last  exhibition  of 
it  took  place  at  the  Law  School  of  Harvard  College  last  Friday 
evening  at  the  first  meeting  of  the  Assembly,  so  called,  for  the 
term. 

The  "Conservatives"  of  the  institution  are  of  rather  an  ag- 
gressive turn ;  and  it  will  be  recollected  that  last  spring  they  made 
themselves  uproariously  noisy  against  the  impeachment  of 
Andrew  Johnson,  but  were  badly  beaten  despite  their  rebel  tac- 
tics and  trickery.  Last  Friday,  their  efforts  were  directed  to  the 

prevention  of  a  colored  gentleman,  Mr.  R ,  a  member  of 

the  School,  from  joining  the  Assembly,  and  again  they  had  to 
haul  off  their  badly  demoralized  and  discomfitted  forces. 

The  movement  had  its  origin  in  the  "Marshall  Club",  an  or- 
ganization which  is  run  in  the  interests  of  a  white  man's  govern- 
ment— the  members  of  which  had  a  meeting,  the  evening  before, 
when  they  laid  their  plans  and  prepared  a  line  of  conduct  which 


WAR  PERIOD.  293 

was  to  succeed  surely. (i)  They  came  to  the  regular  meeting  of 
the  Assembly  on  Friday  promptly  on  time,  gathered  themselves 
into  a  knot,  conferred  once  more  and  commenced  action  by  nom- 
inating one  of  their  number  for  speaker,  in  which  they  were  suc- 
cessful ;  he  was  elected,  as  was  also  their  clerk. 

.  .  .  One  of  the  leaders  offered  a  resolution  to  the  effect 
that  the  first  rule,  declaring  that  "every  member  of  the  School 
shall  be  of  right  a  member  of  the  Assembly  upon  signing  its  rules 
and  orders,"  was  not  intended  to  include  colored  persons. 

After  an  exciting  debate,  in  pursuance  of  this  "copperhead 

plot,"  in  which  Mr.  R ,  himself,  a  highly  educated  man,  a 

protege  of  Wendell  Phillips,  and  a  prominent  anti-slavery  orator, 
took  part,  and  in  which  Mr.  B of  Georgia,  private  secre- 
tary of  Alexander  F.  Stephens,  "made  an  old  fashioned,  pro- 
slavery  speech",  the  motion  was  withdrawn. 

Early  in  1868,  Professor  Parker,  after  twenty  years'  service, 
being  then  seventy-three  years  old,  decided  to  resign  from  the 
Royall  Professorship;  and  his  resignation  was  accepted  by  the 
Corporation,  February  29,  1868.  On  April  28,  President  Hill 
wrote  to  him (2)  : 

Your  letter  resigning  the  Royall  Professorship  was  accidentally 
delayed  on  its  way  to  the  President  and  Fellows  and  not  laid 
before  that  body  until  long  after  its  writing. 

The  Corporation  were  too  well  aware  that  it  would  be  useless 
to  oppose  your  decision,  and  they  had  no  alternative  but  to  accept 
the  resignation.  Permit  me  to  assure  you  that  they  expressed 
the  deepest  sense  of  the  value  of  your  long  fidelity  to  the  duties 
of  the  office,  and  that  they  would  have  embodied  the  expression 
in  some  formal  action,  had  it  not  been  the  established  principle 
to  refrain  from  such  testimonials.  But  in  the  name  of  my  col- 


(1)  It   seems    that   this   was  a   mis-statement.      In   the    Record    Book 
of  the  Marshall  Club  under  date  of  Sept.  3,  1868,  appears  the  following: 

"The  attention  of  the  Marshall  Club  having  been  called  to  an  article 
in  last  week's  issue  of  the  'Commonwealth'  newspaper  regarding  the 
proceedings  in  the  Harvard  Law  School  Assembly  in  which  certain  meas- 
ures are  stated  as  having  originated  in  the  Marshall  Club,  such  state- 
ment being  wholly  incorrect, 

Resolved :  that  the  Club  believes  it  not  only  the  right  but  the  duty 
of  every  American  Citizen  to  take  advantage  of  every  opportunity  of 
education  to  raise  himself  in  the  scale  of  humanity,  and  so  far  from 
desiring  to  exclude  any  person  from  the  advantages  of  education  that 
we  enjoy  we  believe  in  offering  every  encouragement  to  any  person  who 
desired  to  avail  himself  of  the  benefit  of  this  institution." 

The  vote  was  offered  by  William  W.  Carruth,  seconded  by  John  P. 
Davenport,  Jr.,  opposed  by  Cassius  K.  Breneman.  It  was  also  voted  to 
publish  the  above  in  the  Boston  Papers. 

(2)  Harv.  Coll.  Archives  Letters  of  the  President. 


294  HARVARD  LAW  SCHOOL. 

leagues  I  venture  to  utter  their  thanks  for  your  faithful  and  valu- 
able services  and  their  wishes  for  your  long  enjoyment  of  a  well 
earned  rest.(i) 

As  Parker  had  been  contemplating  this  step  for  some  months, 
Professor  Parsons  had  in  the  mean  while  been  considering  a 
possible  successor.  Finally  he  decided  to  turn  to  his  friend  Na- 
thaniel Holmes,  then  Chief  Justice  of  the  Supreme  Court  of 
Missouri.  Both  Holmes  and  Parsons  were  very  zealous  in  their 
adherence  to  the  Swedenborgian  religious  beliefs;  and  this  fact 
undoubtedly  had  an  influence  in  determining  Parson's  choice. 
On  February  5,  1868,  he  wrote  to  Holmes (2)  : 

Professor  Parker  has  resigned.  I  have  reason  to  believe  that 
the  Corporation  of  the  College,  (who  have  the  exclusive  right  of 
appointment)  have  not  yet  made  choice  of  his  successor. 

It  is  possible  they  may  ask  Professor  Washburn  and  myself 
for  some  suggestion.  In  that  case,  will  you  do  us  the  very  great 
favor  of  permitting  us  to  mention  your  name  to  them  ? 

The  work  is  this.  You  would  give  to  lectures  and  Moot  Courts 
about  50  or  60  forenoons,  and  a  dozen  afternoons,  in  the  course 
of  a  year.  Your  office,  with  all  its  expenses,  is  provided  for  you ; 
and  the  young  men  would  call  occasionally  for  advice  or  assist- 
ance in  their  studies,  which  you  would  find  pleasure  in  giving 
them. 

The  vacations  are  about  five  weeks  in  winter,  and  nine  or  ten 
in  summer. 

After  a  year  or  two,  when  you  have  gone  through  the  course, 
(which  repeats  itself  every  two  years)  you  would  have  abundant 
time  for  practice  if  you  wished,  or  for  literary  labor.  And  if 
this  was  connected  with  the  profession,  I  need  not  say  that  the 
School  and  the  position  you  would  hold  in  it,  would  give  you  great 
facilities,  not  only  for  writing  the  books,  but  for  making  them 
profitable. 

(1)  Joel  Parker  died,  seven  years  later,  on  August  17,  1875.  He  was  a 
non-resident    Professor    of    Law    at    Dartmouth    College,    1868-1874.    For 
many  years  he   was   a  Fellow   of   the   American   Academy   of   Arts   and 
Sciences,  and  a  member  of  the  Massachusetts,  the  New  Hampshire  and  the 
Connecticut  Historical  Societies. 

In  addition  to  his  work  at  the  Harvard  Law  School,  he  was  Professor 
of  Medical  Jurisprudence  in  the  Columbian  Law  School  in  Washington, 
1847-1857;  and  he  gave  lectures  on  that  subject  in  the  Boylston  Medical 
School  in  Boston  in  1851  and  in  the  Medical  College  in  New  York. 

Besides  the  papers,  lectures  and  articles  previously  mentioned,  he  was 
the  author  of  Law  of  Homicide  (the  Webster  Case},  published  in  1851; 
Origin,  Organisation  and  Influence  of  the  Towns  of  New  England,  in 
1867;  First  Charter  and  Early  Religious  Legislation  of  Massachusetts,  in 
1869. 

(2)  This    letter    and    the    letter    from    Nathaniel    Holmes    are    in    the 
possession  of  Professor  Parsons'  heirs. 


WAR  PERIOD.  295 

The  pay  is  now  but  $3000  a  year.  But  an  effort  will  be  made 
to  increase  this,  and  I  have  great  confidence  that  if  more  is 
needed  to  secure  your  acceptance,  more  would  be  had. 

Now  my  dear  Sir,  we  would  be  unwilling  to  persuade  you  to 
come  here.  I  cannot  however  forbear  expressing  our  strong 
desire  that  you  should  permit  us  to  consider  you  as  willing  to 
come ;  or,  at  least,  as  willing  to  take  this  thing  into  consideration 
if  the  offer  be  made  you.  I  will  not  promise  that  everybody  will 
be  converted  to  "Baconism",  but  I  am  sure  that  your  scholarship 
and  intellect  will  be  recognized. 

Holmes  replied,  February  13,  1868: 

The  kind  expressions  of  the  first  part  of  your  letter  of  the  5th 
inst.,  I  scarcely  need  say,  were  very  grateful  to  me:  the  second 
part  threw  my  ideas  into  greater  confusion  than  I  can  possibly 
imagine  my  erratic  book  to  have  done  yours — as  if  I  had  been 
invited  to  shift  my  residence  into  the  planet  Jupiter,  or  to  take 
my  place  in  Heaven  at  once.  But  how  to  think  of  tearing  up  my 
roots  here  in  this  Missouri  earth ! 

On  the  eve  of  starting  for  St.  Joseph  (for  two  weeks),  without 
further  reflection,  I  must  give  you  some  answer.  In  many  re- 
spects, I  confess,  the  idea  presents  an  agreeable  vision  to  my 
family.  I  am  doubtful  of  my  sufficiency — but  that  the  favorable 
opinion  of  Prof.  Washburn  and  yourself  might  inspire  me  with 
courage  to  waive  that  objection. 

Should  I  be  required  to  appear  among  you  (in  case  the  choice 
fell  on  me)  before  the  beginning  of  the  winter  term  in  Sept. 
next?  My  present  term  on  the  Bench  expires  with  this  year. 
I  should  not  like  to  resign  before  the  end  of  our  August  Term, 
and  thus  impose  on  the  Governor  the  necessity  of  making  another 
appointment  for  the  short  time  before  the  regular  elections  in 
November  would  fill  the  place. 

Again,  could  the  Corporation  determine  the  matter  between 
this  and  July  next?  or  sooner  than  July? 

For  I  should  like  to  know,  in  time,  whether  to  accept  a  nomina- 
tion for  re-election. 

Our  Legislature  has  under  consideration  a  bill  (already  agreed 
to  by  the  Senate  and  now  awaiting  the  action  of  the  House)  to 
raise  the  salary  of  the  judges  to  $4000.  You  suggest  a  possible 
increase  of  the  salary  of  the  Professor.  In  this  matter,  I  should 
not  be  disposed  to  chaffer  at  all.  but  would  leave  it  wholly  to  the 
discretion  of  the  proper  authorities. 

There,  my  dear  Sir,  you  see  the  inclination  of  my  mind ;  and  as 
a  lawyer  may  be  expected  to  come  directly  to  the  point,  I  may  say 
that  I  will  leave  it  to  your  better  judgment  whether  to  present 
my  name  or  not,  reserving  only  some  right  of  further  considera- 
tion if  it  should  become  necessary,  and  with  the  hope  that  (if 
you  persist)  you  may  be  able  to  let  me  know  of  any  affirmative 


296  HARVARD  LAW  SCHOOL. 

result  at  as  early  a  day  as  practicable,  in  reference  to  the  course 
I  should  then  have  to  take  here ;  and  of  course  if  the  Corporation 
should  happen  to  find  a  better  man,  there  will  be  no  harm  done. 

On  June  27,  1868,  the  Corporation  elected  Holmes  as  Royall 
Professor,  and  the  Overseers  confirmed  this  action,  July  15. 

Nathaniel  Holmes  was  born  January  2,  1815,  at  Peterborough, 
N.  H.  In  1822  his  family  removed  to  Vermont ;  he  studied  at 
Chester  Academy  in  Vermont  and  at  New  Ipswich  Academy  in 
New  Hampshire,  entered  Harvard  College  in  1833  and  graduated 
in  1837.  In  1838,  he  became  private  tutor  in  the  family  of 
a  Maryland  planter.  During  1838-39  he  studied  at  the  Harvard 
Law  School,  and  at  the  close  of  the  year  1839  w^s  admitted 
to  the  Bar  in  Boston.  Immediately  thereafter  he  went  to  St. 
Louis,  where  he  was  admitted  to  the  Bar  in  1840.  In  1842,  he 
was  looked  upon  as  having  exceptional  ability,  and  was  already  in 
the  enjoyment  of  a  good  practice.  In  1846,  he  was  elected  At- 
torney for  the  .City  and  County  of  St.  Louis.  In  the  years  1853 
and  1854,  he  was  Attorney  for  the  St.  Louis  Public  School  Board. 
About  this  time,  the  St.  Louis  Law  School,  a  part  of  Washington 
University,  was  established,  and  he  became  a  member  of  the  first 
Faculty,  his  subjects  being  History  and  Science  of  Law,  Equity 
Jurisprudence,  and  Pleading  and  Practice. 

In  1861,  when  the  war  came  on,  at  a  convention  chosen  by  the 
vote  of  the  people,  a  provisional  government  was  established  for 
the  State  of  Missouri,  and  among  other  things  passed  by  the  con- 
vention was  an  ordinance  vacating  the  offices  of  the  Judges  of  the 
Supreme  Court  of  Missouri.  Under  the  authority  of  that  ordi- 
nance, Gov.  Gamble  appointed  as  Judges,  Bates,  Bay  and  Dryden. 
Subsequently,  in  November,  1863,  these  three  Judges  were  elected 
by  the  people  for  a  term  of  six  years. 

On  February  13,  1864,  the  General  Assembly  of  Missouri  pass- 
ed an  act  providing  for  the  calling  of  a  State  Convention  to  con- 
sider certain  amendments  to  the  State  Constitution.  On  March 
17,  1865,  the  Convention,  so  called,  passed  an  ordinance  vacating 
the  offices  of  the  Judges  of  the  Supreme  Court. 

Gov.  Fletcher,  who  succeeded  Gov.  Gamble,  acting  under  the 
ordinance,  notified  Judges  Bates,  Bay  and  Dryden  to  vacate,  and 
appointed  three  new  Judges  in  their  places,  including  Holmes. 
Each  set  of  Judges  thereupon  called  a  special  term  of  the  Su- 
preme Court  of  the  State  of  Missouri,  to  be  held  in  the  City  of 


WAR  PERIOD.  297 

St.  Louis  on  June  12,  1865.  The  old  set  of  Judges,  nevertheless, 
having  possession,  took  their  seats  on  the  bench  on  that  day,  and 
endeavored  to  proceed  with  the  Court's  business.  The  Attorney 
General  (Coleman)  for  the  State  of  Missouri,  acting  at  the  in- 
stance of  the  Governor,  notified  these  Judges  that  unless  they  va- 
cated their  seats  at  once  they  would  be  forcibly  removed.  The 
old  set  of  Judges  refused  to  pay  any  attention  to  either  the  Attor- 
ney General  or  the  Governor.  Thereupon  the  Attorney  General 
returned  to  the  court  room  with  the  police  force,  removed  the 
old  set  of  Judges  by  force,  lodged  a  complaint  against  them  for 
disturbing  the  peace,  and  with  this  mixture  of  military  and 
judicial  authority  closed  the  incident,  and  put  Nathaniel  Holmes 
on  the  bench  of  the  Supreme  Court  of  the  State  of  Missouri. 

For  twenty  years,  1856-76,  Judge  Holmes  was  the  Correspond- 
ing Secretary  for  the  Academy  of  Science  in  St.  Louis.  In  1859 
he  received  from  Harvard  the  degree  of  Master  of  Arts.  In  1866 
he  published  at  Boston  a  book  entitled  The  Authorship  of  Shake- 
speare, being  an  endeavor  to  prove  that  the  dramas  of  Shake- 
speare were  written  by  Francis  Bacon. 

The  bad  financial  condition  of  the  times  was  beginning  to  have 
its  effect;  and  the  numbers  in  the  School,  1868-69,  did  not  sub- 
stantially increase,  being  142  in  the  first  term  and  115  in  the 
second.  The  question  of  expense  of  attendance  at  both  the  Law 
School  and  College  was  troubling  the  authorities ;  and  Acting 
President  A.  P.  Peabody  said  in  the  President's  Annual  Report, 
for  1868-69: 

It  is  much  to  be  desired  that  there  should  be  some  method  for 
reducing  the  very  heavy  expense  of  attendance  at  the  Law  School. 
The  erection  of  dormitories  for  the  use  of  the  students,  whether 
expedient  or  not,  is  at  present  out  of  the  question.  But  arrange- 
ments similar  to  those  of  the  Thayer  Club,  for  furnishing  board 
at  cost,  are  no  doubt  practicable,  should  the  right  persons  take  the 
initiative.  Moreover,  while  we  doubt  the  expediency  of  extend- 
ing strictly  eleemosynary  aid  to  professional  students  of  any 
class,  a  loan  fund  for  law  students  would  be  an  unspeakable  relief 
and  benefit ;  and  the  experience  of  the  Professors  in  loans  to  a 
limited  extent  in  cases  of  intense  need  authorizes  the  belief  that 
such  a  fund  would  hardly  ever  incur  a  bad  debt,  so  that  subscrip- 
tion to  it  would  be  simply  an  investment,  not  a  sacrifice. 

In  view  of  the  many  criticisms  which  were  later  made  on  the 
condition  of  the  School  during  this  period,  1860-68,  it  should  be 


298  HARVARD  LAW  SCHOOL. 

noted  that  its  methods  and  courses  of  instruction  were  approved 
in  several  official  reports  by  the  Faculty  and  by  the  Visiting  Com- 
mittees. 

The  Visiting  Committee  reported  for  the  year  1862,  "entire 
satisfaction  with  the  plan  of  instruction  adopted  and  the  manner 
of  carrying  it  out." 

The  Law  Faculty  reported  December  30,  1863,  to  the  Visiting 
Committee : 

The  course  of  instruction  adopted  by  the  wisdom  of  their 
predecessors  after  a  large  experience,  is  believed  to  be  well  adap- 
ted to  the  wants  of  the  young  men  who  desire  to  avail  themselves 
of  the  advantages  of  the  School,  and  the  Professors  .have  been 
slow  to  risk  innovation. 

The  Visiting  Committee  for  1863  reported : 

We  were  entirely  satisfied  that  both  the  matter  and  manner  of 
the  lectures  attended  by  it,  given  by  Royall  Professor  Judge 
Parker  to  a  large  number  of  students,  were  admirably  calculated 
to  impress  and  improve  the  students  who  listened  to  it. 

Dec.  28,  1864,  the  Law  Faculty  reported : 

The  modes  of  instruction  heretofore  adopted  appear  to  have 
accomplished  satisfactory  results  and  the  Professors  have  not 
been  inclined  to  try  experiments. 

The  Visiting  Committee  for  1864  reported  that  they  were 
"entirely  satisfied  with  the  condition  of  the  School." 

The  President's  Annual  Report  for  1864-65  thus  summed  up 
the  general  system  of  instruction — a  system  which  only  five  years 
later  was  to  be  entirely  revolutionized  by  the  advent  of  the  Eliot 
and  Langdell  regime: 

As  there  have  been  no  new  arrangements  in  relation  to  the 
organization  of  the  School  or  the  course  of  instruction,  the 
Faculty  have  nothing  to  add  to  their  previous  reports  on  these 
subjects,  and  therefore  adopt  the  language  of  their  last  report. 

As  stated  in  their  last  report,  ten  Lectures  are  delivered  in  each 
week,  with  occasional  extra  Lectures,  generally  from  text-books 
designated ;  and  in  the  course  of  the  Lectures  examinations  are 
made,  by  inquiry  of  the  students  as  to  cases  or  principles  pre- 
sented to  them  in  connection  with  the  subject  matter  of  the  Lec- 
ture. The  Faculty  continue  this  method  of  examination,  being 
convinced  that  no  other  would  meet  so  satisfactorily  the  wants 
of  the  School. 


WAR  PERIOD.  299 

A  Moot  Court  has  been  held  each  week  by  one  of  the  Profes- 
sors. The  Law  Faculty  repeat  the  expression  of  their  confidence 
in  the  great  utility  of  these  courts.  That  they  must  be  especially 
useful  to  the  students  engaged  in  them  as  counsel,  is  obvious. 
But  they  are  always  equally  profitable  to  others  who  investigate 
the  questions  presented,  and  indeed  to  all  who  attend  them,  and 
make  use  of  the  opportunities  they  offer  to  learn  to  take  notes 
readily  and  accurately. 

Qubs  for  discussion  and  debate,  and  for  the  argument  of  cases 
have  been  continued  by  the  students.  The  Faculty  regard  them 
as  eminently  useful,  and  provide  for  them  all  the  facilities  and 
encouragement  in  their  power. 

Prizes  for  Dissertations  have  been  awarded  as  before. 

The  President's  Annual  Report  for  the  year  1868-69,  the  last 
one  made  prior  to  the  upheaval  in  the  Law  School,  brought  about 
by  the  appointment  of  C.  C.  Langdell  as  Dane  Professor  and  as 
Dean,  shows  that,  according  to  the  views  of  the  then  President, 
the  School  was  by  no  means  in  an  unfortunate  position — even 
under  the  old  regime : 

In  the  Law  School,  Hon.  Nathaniel  Holmes  has  entered  on  his 
duties  as  Royall  Professor  of  Law,  thus  completing  the  normal, 
though  by  no  means  the  desirable,  number  of  resident  Professors. 
The  year's  record  is  the  usual  one  of  success  and  prosperity. 
The  Professors  do  not  deem  their  duty  fulfilled  by  lectures  and 
class-instruction.  In  their  rooms  in  Dane  Hall  they  are  accessible 
by  their  pupils  at  all  hours,  and  those  who  are  veritably  students 
can  always  obtain  from  them  the  direction  and  assistance  they 
may  need. 

The  course  of  instruction  was  in  general  so  laid  out  as  to  be 
repeated  by  each  Professor  every  other  year. 

Lectures  were  given  as  follows :  by  Professor  Parker — Con- 
stitutional Law  and  Jurisprudence  of  the  United  States  in  each 
year,  Equity  Jurisprudence,  Law  of  Corporations  in  1861-62, 
and  alternate  years;  Bailments  in  1861-62,  and  alternate  years; 
Agency  in  186061,  and  alternate  years;  Law  of  Writs  of  Error 
in  1866-67;  Equity  Pleading  in  1861-62  and  alternate  years, 
Common  Law  Pleading  in  186061,  and  alternate  years:  by  Pro- 
fessor Parsons — Kent  and  Blackstone  each  year ;  Insurance  in 
186061,  1865-66,  1866-67,  1867-68;  Evidence  in  186061,  and 
alternate  years;  Contracts  in  186061,  1864-65,  1866-67;  Bills  and 
Notes  in  1861-62,  1862-63,  1863-64,  1865-66,  1867-68;  Partner- 
ship in  1861-62,  and  alternate  years ;  Shipping  and  Admiralty  in 


300  HARVARD  LAW  SCHOOL. 

1862-63,  1863-64,  1865-66,  1867-68;  International  Law  in  1863- 
64,  1864-65 :  by  Professor  Washburn — Real  Property  in  each 
year;  Arbitration  in  1860-61,  1861-62,  1864-65;  Bankruptcy  and 
Insolvency  in  1861-62,  1864-65,  1866-67;  Criminal  Law  in  1860- 
61,  and  alternate  years;  Wills  and  Administration  in  1 860-61, 
and  alternate  years ;  Conflict  of  Laws  in  1861-62,  1864-65,  1867- 
68 ;  Equity  Pleading  and  Evidence  in  1867-68 ;  Domestic  Relations 
in  1862-63,  1863-64,  1865-66,  1867-68 ;  Sales  in  1863-64,  1866-67 : 
in  1866-67  Richard  H.  Dana  delivered  a  course  on  International 
Law,  and  in  1867-68,  two  courses  on  the  same  subject. 

WAR   RECORD. 

At  this  end  of  the  War  Period,  the  following  record  of  the 
students  of  the  School  who  enlisted  in  the  Union  army  may  be 
noted(i) : 

Total  students  of  Harvard  University  who  so  served,  in- 
cluding graduates  and  non-graduates 1337 

Of  Law  School  graduates  (LL.B.'s),  who  had  also  been 

Harvard  A.  B.'s  or  Harvard  non-graduates 60 

Of  Law  School  graduates  (LL.B.'s),  who  were  not  Har- 
vard men 113 

Of  Law  School  non-graduates,  who  had  also  been  Harvard 

A.  B.'s  or  Harvard  non-graduates 49 

Of  Law  School  non-graduates,  who  were  not  Harvard  men        82 


Total  from  the  Law  School 304 

Of  the  Law  School  students  who  either  left  or  graduated  dur- 
ing the  years  of  the  war  the  following  number  served  in  the  Union 
army: 

From  the  Class  of  1860 20 

From  the  Class  of  1861 35 

From  the  Class  of  1862 21 

From  the  Class  of  1863 9 

From  the  Class  of  1864 1 1 

From  the  Class  of  1865 8 

In  the  classes  just  after  the  war,  the  following  number  of  law 


(i)  The  figures  are  compiled  from  Harvard  University  in  the  War  of 
1861-1865,  by  Dr.  Francis  H.  Brown  (1886)  ;  and  from  an  article  by  Dr. 
Brown  in  Harv,  Grad.  Mag.,  Vol.  X  (1902), 


WAR  PERIOD.  301 

students  who  had  served  in  the  war  graduated  or  left  the  School : 

In  the  Class  of  1866 19 

In  the  Class  of  1867 18 

In  the  Class  of  1868 6 

In  the  Class  of  1869 2 

It  is  greatly  to  be  regretted  that  no  full  compilation  has  yet 
been  made  of  the  graduates  and  non-graduates  of  Harvard  Col- 
lege and  of  the  Law  School  who  served  in  the  Confederate  army. 
An  incomplete  manuscript  is  now  in  the  College  Library  awaiting 
sons  of  Harvard  or  of  its  Schools  who  shall  have  the  time  and 
interest  to  make  the  research  necessary  to  complete  the  record. 
Meanwhile  the  passing  of  every  year  will  make  the  work  more 
difficult.  The  lack  of  such  a  full  list  of  the  Harvard  supporters 
of  the  Confederacy  is  especially  deplorable  with  regard  to  the 
Law  School  owing  to  the  large  attendance  at  that  School  from  the 
Southern  States  before  the  war. 


CHAPTER  XXXVII. 
PARKER,  PARSONS  AND  WASHBURN. 

It  has  been  somewhat  the  habit  of  writers  and  speakers  in 
recent  years  to  glorify  the  condition  of  the  Law  School  during  the 
Langdell  regime  and  to  depreciate  correspondingly  its  condition 
under  the  previous  regime. 

This  tendency  was  the  subject  of  a  spirited  reply,  from  Pro- 
fessor Joel  Parker  as  long  ago  as  1871,  when  he  printed  his 
pamphlet  on  the  Law  School,  in  defence  of  attacks  made  in  an 
article  in  the  American  Law  Review  in  October,  1870.  and  in  a 
report  of  the  Visiting  Committee  to  the  Overseers  Oct.  17,  1870. 

Referring  to  the  former,  Judge  Parker  said : 

Had  the  author  of  the  article  been  content  to  commend  the  new 
order  of  things  without  disparagement  of  the  old  .  .  .  the 
matter  might  be  passed  without  notice.  But  the  declaration  that 
"for  a  long  time  the  condition  of  the  Harvard  Law  School  has 
been  almost  a  disgrace  to  the  Commonwealth  of  Massachusetts,'' 
stands  at  the  head  and  front  of  the  article ;  and  the  phraseology, 
although  not  very  clear  or  happy,  seems  to  have  been  deliberately 
chosen.  .  .  .  Whoever  may  be  the  author,  it  is  put  before 
that  portion  of  the  profession  who  read  the  Law  Review  with 
the  endorsement  of  the  editors  of  that  magazine — two  young 
men,  it  is  understood,  who  about  four  years  since,  consented  to 
receive  the  honors  of  the  School  in  the  shape  of  a  degree  of 
Bachelor  of  Laws.(i)  .  .  .  It  is  difficult  under  the  circum- 
stances to  say  which  is  most  prominent  in  the  article,  the  conceit 
which  dictated  it  or  the  entire  lack  of  courtesy  manifested  by  it. 

.  .  .  The  learning  and  ability  of  the  present  corps  of  in- 
structors warrant  the  prediction  that  their  labors  will  make  the 
School  what  it  ought  to  be.  ... 

These  utterances  present  grave  charges  against  the  School 
generally,  against  the  rules  upon  which  it  has  been  conducted 
ever  since  it  was  established,  and,  by  implication  at  least,  against 
some  of  its  previous  Instructors,  who,  it  must  be  supposed,  did 
not  do  what  it  is  predicted  the  present  will  perform.  .  .  . 

I  may  naturally  be  supposed  to  have  some  interest  in  the  repu- 
tation of  the  School,  to  say  nothing  of  my  own.  Others  have  an 
interest  also.  .  .  .  The  other  members  of  the  Corps  of  In- 


(i)  O.  W.  Holmes,  Jr.,  (L.  S.  1864-66)  and  Arthur  G.  Sedgwick  (L.  S. 
1865-67). 


REMINISCENCES.  303 

struction  and  the  relatives  of  those  who  were  members  previous- 
ly. If  the  School  has  been  "for  a  long  time  almost  a  disgrace  to 
the  Commonwealth,  it  has  been  an  entire  disgrace  to  the  Corpora- 
tion to  permit  such  a  state  of  things.  It  may  be  added  that  all 
the  past  members  of  the  School — especially  those  who  have  re- 
ceived this  discreditable  degree  conferred  without  preliminary 
examination — cannot  take  much  pride  in  their  membership  if  its 
character  has  been  what  is  thus  represented. 

Professor  Parker  thereupon  presented  an  elaborate  sketch  of 
the  history  of  the  School,  in  order  to  refute  the  above  criticisms. 

Further  refutation,  if  needed,  is  amply  supplied  by  the  grateful 
recollections  of  hosts  of  those  who  received  their  legal  education 
in  the  School,  1850-1870. 

Testimony  of  their  gratitude  and  indebtedness  to  the  teachings 
and  influence  of  the  Professors  of  these  years  has  repeatedly  been 
given  in  speeches  and  has  been  strikingly  set  forth  in  many  letters 
to  the  author. 

It  is  well,  therefore,  for  the  graduates  since  1870  to  remember 
that  there  were  indeed  "kings  before  Agammemnon." 

Thus  Charles  R.  Codman,  (L.  S.  1851-52),  of  Boston, 
writes  ( I )  : 

The  general  tone  of  the  students  in  my  day  was  much  as  I 
understand  it  to  be  now.  They  were  there  to  work,  they  were  no 
longer  boys,  and  were  under  no  undergraduate  restraints.  There 
was  plenty  of  hard  work  done. 

Henry  N.  Blake  (L.  S.  1856-58),  Judge  of  the  Supreme  Court 
of  Montana,  writes : 

While  no  entrance  examination  was  required,  there  was  a  high 
percentage  of  graduates  of  colleges ;  and  of  the  others,  most  of 
them  held  diplomas  from  academies  and  high  schools. 

It  was  a  tradition  that  only  one  student  was  expelled  from  the 
Law  School  for  immoral  conduct,  and  this  person  became  a  Mem- 
ber of  Congress.  While  I  approve  most  cordially  of  the  new 
system  of  teaching  law  which  prevails  in  the  School,  I  contend 
that,  with  rare  exceptions,  the  pupils  in  my  generation  did  not 
waste  their  opportunities.  Those  who  knew  they  must  live  by  the 
fruits  of  their  profession  toiled  early  and  late.  I  have  carefully 
reviewed  the  names  of  classmates  who  received  in  1857  and  1858 
their  degrees.  The  total  number,  105,  is  small  by  comparison 


(i)     This  letter  and  the  following  letters,  unless  otherwise  stated,  were 
written  to  the  author  in  1907  and  1908. 


304  HARVARD  LAW  SCHOOL. 

with  the  classes  of  recent  years ;  but  the  members  were  thorough- 
ly acquainted,  and  I  am  convinced  that  25  per  cent,  would  have 
passed  a  satisfactory  examination  in  the  courses  there  pre- 
scribed. .  .  .  In  1858,  Hon.  David  Dudley  Field,  who  served 
on  the  committee  to  award  prizes  for  essays,  delivered  an  ad- 
dress to  the  School  and  congratulated  the  students  upon  their 
good  fortune  in  learning  law  in  an  institution  having  superior 
facilities;  he  regretted  deeply  that  he  did  not  have  the  benefit  of 
the  School  when  he  was  a  young  man. 

Joseph  H.  Choate  (L.  S.  1852-54)  said,  in  1895,  at  the  Lang- 
dell  dinner  of  the  Harvard  Law  School  Association : 

I  know  how  painful  eulogy  is  to  Professor  Langdell,.  and  there- 
fore I  may  throw  out  some  suggestions  that  will  serve  perhaps 
as  a  little  antidote  to  that  of  which  the  learned  Professor  from 
Oxford  and  your  presiding  officer  have  been  so  profuse. 

I  can  remind  him  that  there  was  a  Harvard  Law  School  before 
he  was.  I  claim  myself  to  have  enjoyed  the  tuition  of  Harvard 
College  and  of  the  Dane  Law  School  in  the  golden  age  of  each  of 
these  institutions,  profound  as  is  my  admiration  for  our  present 
distinguished  president.  ...  I  do  wish  to  say  a  single  word 
of  tribute  to  the  memory  of  Professor  Parsons,  who  was  then 
the  most  accomplished  of  the  Professors  of  the  Law  School  and 
the  only  one  of  whom  I  ever  learned  much  of  anything.  I  do  not 
claim  that  he  was  a  very  profound  lawyer,  at  least  before  he 
made  the  acquaintance  of  Professor  Langdell,  but  he  was  one  of 
the  most  charming  and  delightful  of  men.  It  was  his  maxim  of 
life — that  it  was  the  duty  of  every  lawyer  to  get  all  the  entertain- 
ment possible  out  of  his  work  as  he  went  along;  and  whether 
in  his  lectures,  in  social  converse,  in  court,  wherever  he  was,  he 
had  a  most  delightful  way  of  saying  things.  Even  while  uttering 
the  foundation  principles  of  the  Common  Law  he  impressed  them 
upon  the  minds  of  his  hearers  in  a  way  that  I,  for  one,  have  suc- 
ceeded in  carrying  always  through  a  long  professional  career. 

Now  "by  their  fruits  ye  shall  know  them",  and  I  think  there 
were  fruits  from  the  old  Dane  Law  School  with  which  even 
those  of  the  present  administration  may  sometimes  hesitate  to 
challenge  a  comparison. 

And  in  a  letter  to  the  author,  Mr.  Choate  says : 

My  own  experience  at  the  Law  School  was  most  interesting 
and  valuable.  Of  all  the  Professors,  the  most  valuable  to  me  was 
Theophilus  Parsons,  although  he  had  none  of  the  profundity 
and  deep  learning  of  Judge  Parker.  But  he  essentially  had  every- 
thing that  he  knew  at  his  tongue's  end,  and  had  a  very  happy 
faculty  of  imparting  information  and  of  impressing  the  common 


REMINISCENCES.  305 

maxims  of  the  law  upon  the  minds  of  the  students  and  enforcing 
the  same  occasionally  by  an  interesting  story.  In  this  way,  I 
think,  he  made  a  much  deeper  impression  upon  the  minds  and 
memories  of  the  average  students  than  the  others,  and  many  an 
utterance  of  his  I  have  had  occasion  to  use  in  years  long  after- 
wards, and  have  been  very  grateful  to  him  for  the  knowledge 
that  he  thus  imparted.  Judge  Parker  was  altogether  too  deep  for 
me,  although  Langdell  and  Carter,  who  were  students  at  the  Law 
School  about  the  same  time,  regarded  him  as  the  center  from 
which  the  gladsome  light  of  jurisprudence  chiefly  emanated.  But 
he  was  altogether  too  learned  and  profound  for  the  average  mind 
to  follow.  Judge  Loring  suffered  somewhat  from  his  then  recent 
unfortunate  association  with  the  fugitive  slave  cases,  which  at  the 
time  seriously  affected  the  public  mind  and  the  judgment  of  those 
who  took  part  in  them,  although  I  believe  him  to  have  been  abso- 
lutely conscientious,  however  misguided  in  what  he  did.  He 
too,  was  fond  of  reiterating  the  common  maxims  of  the  law,  and 
sometimes  stamped  them  so  deeply  upon  our  minds  as  never  to 
be  obliterated — as  for  instance  the  one  he  chiefly  prided  himself  in 
his  lectures  on  the  Domestic  Relations — that  "husband  and  wife 
are  one,  and  that  one  is  the  husband".  In  this  respect  the  law 
has  happily  changed  since  his  time. 

My  impression  is  that  the  manner  of  dealing  with  the  students 
of  the  Law  School  at  that  time  was  a  very  wholesome  one,  and 
amply  sufficient  for  all  those  who  were  there  with  any  earnest 
desire  to  fit  themselves  for  the  profession,  although  those  who 
did  not,  and  attended  as  a  mere  pastime,  did  not  get  much  out  of 
it.  There  were  no  examinations,  attendance  at  the  lectures  was 
voluntary,  but  most  of  the  students  were  very  zealous  in  their 
attendance.  There  was  no  cramming,  which  is  such  a  vitiating 
feature,  in  my  judgment,  in  the  modern  methods.  Whoever 
wanted  to  learn,  learned  quite  enough. 

In  no  branch  of  education  is  the  personality  of  the  Professor 
of  so  great  importance  as  in  the  study  of  the  law.  The  Pro- 
fessors were  and  are  the  Law  School. 

It  was  not  the  Library,  the  Moot  Court,  or  the  study  of  the  text 
book,  which  made  the  lawyers  of  1845  to  1<&7Q\  it  was  the  influ- 
ence of  the  character  and  individuality  of  Joel  Parker,  of  Theo- 
philus  Parsons,  and  of  Emory  Washburn.  They  were,  all  three, 
great  men,  and  each  in  his  individual  way.  Parker  was  the  great 
lawyer;  Parsons,  the  great  teacher;  and  Washburn,  the  great 
man. 

Mr.  Justice  Oliver  Wendell  Holmes,  (L.  S.  1864-66)  has  thus 
epitomized  the  three  Professors : 

Parker,  who  I  think  was  one  of  the  greatest  of  American  Judges, 
20 


306  HARVARD  LAW  SCHOOL. 

and  who  showed  in  the  chair  the  same  qualities  that  made  him 
famous  on  the  bench.  .  .  .  Parsons,  almost  if  not  quite,  a 
man  of  genius  and  gifted  with  a  power  of  impressive  statement 
which  I  do  not  know  that  I  have  ever  seen  equalled;  and  Wash- 
burn  who  taught  us  all  to  realize  the  meaning  of  the  phrase  which 
I  have  already  quoted  from  Vangerow,  the  enthusiasm  of  the 
lecture  room.  He  did  more  for  me  than  the  learning  of  Coke  and 
the  logic  of  Fearne  could  have  done  without  his  kindly  ardor. 

John  C.  Douglass  (L.  S.  1855-57)  °f  Leavenworth,  Kansas, 
writes : 

Judge  Joel  Parker,  in  his  chair  in  the  lecture  room,  was  always 
dignified  and  judicial  in  manner,  and  spoke  as  if  by  authority, 
never  indulging  in  trivalities,  but  not  infrequently  giving  zest  to 
the  closing  sentences  of  an  argument  by  an  anecdote  told  in  a 
quiet  way,  and  always  to  the  delight  of  his  hearers. 

Theophilus  Parsons  was  of  affable  and  pleasing  manners.  His 
style  was  didactic,  and  abounded  in  anecdote  and  illustration. 
He  was  careful  to  present  both  sides  of  all  questions  discussed  by 
him  in  his  lectures,  fully  and  fairly,  and  seemed  greatly  pleased 
when  he  had  so  skilfully  done  this,  as  to  keep  the  weight  of  the 
argument  so  equally  balanced  between  the  two  views  as  to  leave 
the  result  in  doubt,  until  the  very  close  of  his  argument,  when  his 
own  pleasure  was  greatly  enhanced  by  the  surprise  of  the  class, 
at  a  decision  which,  while  very  clear  and  convincing,  was  con- 
trary to  the  one  it  expected. 

Emory  Washburn  was  genial,  frank,  and  unaffected  in  his 
manner  and  speech.  His  style  was  natural,  argumentative  and 
direct  to  the  point,  with  no  effort  at  witty  speeches,  or  flowing 
diction,  but  his  lectures  were  always  instructive  and  eloquently 
delivered. 

Theodore  H.  Tyndale  (L.  S.  1866-68)  of  Boston,  writes : 

Washburn,  full  of  interest,  and  sympathy  with  the  students, 
and  each  individual  one  of  them,  always  willing  and  ready  to  talk 
with  them  to  clear  up  doubtful  points,  not  only  upon  legal  ques- 
tions, but  to  give  personal  advice  and  encouragement.  He  was 
not  content  with  merely  fulfilling  his  ordinary  duties,  but  gave, 
during  my  time,  a  very  instructive  and  helpful  course  upon  com- 
parative law,  especially  in  regard  to  administration  of  estates. 
Professor  Parsons  was  variously  gifted,  discursive,  a  prolific 
writer,  very  entertaining  in  his  general  addresses,  which  he  gave 
with  great  regularity  every  term.  Professor  Parker  was  a  close 
reasoner,  spare  and  precise  in  the  use  of  words ;  not  so  fortunate 
in  his  gifts  as  a  lecturer  and  with  less  personal  contact  with  the 
students  than  either  of  the  other  Professors. 


REMINISCENCES.  307 

Henry  B.  Brown  (L.  S.  1859),  later  Justice  of  the  United 
States  Supreme  Court,  said  in  1895(1)  : 

The  Harvard  Law  School  at  that  day  was  without  a  rival.  Its 
corps  of  instructors  was  small,  but  they  had  no  superior  in  the 
country.  There  was  Emory  Washburn.  ...  a  man  of 
strikingly  handsome  and  intellectual  face,  whose  eloquence  made 
even  the  law  of  contingent  remainders  interesting,  and  the  Statute 
of  Uses  and  Trusts  to  read  like  a  novel.  There  was  Theophilus 
Parsons,  genial  and  enthusiastic,  the  most  prolific  legal  writer  of 
his  generation,  whose  lectures  upon  admiralty  and  commercial 
law  wedded  me  to  that  branch  of  the  profession.  .  .  .  There 
was  also  Joel  Parker,  who.  .  .  .  brought  to  the  platform 
of  the  lecturer  the  sedate  yet  kindly  manner  that  had  character- 
ized him  upon  the  bench,  and  who  was  in  my  eyes  the  very  ideal 
of  what  a  judge  ought  to  be.  ...  My  fellow  students  were 
of  the  best  blood  in  the  land, — sons  not  of  New  England  only,  but 
of  every  State  North  or  South  and  East  of  the  Mississippi.  John 
Brown's  raid  upon  Harper's  Ferry  occurred  while  I  was  here, 
national  politics  ran  high,  and  mutterings  of  civil  war  had  already 
begun  to  be  heard. 

JOEL  PARKER. 

In  appearance  and  character,  Professor  Parker  was  a  type  of 
the  best  New  England  lawyer  and  gentleman  of  his  day — a  man 
of  dignified  and  commanding  presence;  acute  and  profound  of 
mind,  though  somewhat  addicted  to  firing  over  the  heads  of  his 
pupils  and  even  of  his  fellow  lawyers.  His  lectures  were  apt  to 
be  "dry  although  lighted  up  at  intervals  with  a  flash  of  grim 
humor  or  a  bit  of  amusing  sarcasm."  He  was  aware,  however, 
of  his  own  dryness  as  a  lecturer;  and  M.  F.  Dickinson  (L.  S. 
1866-67)  writes,  that  "one  hot  day  in  the  summer  of  1867,  when 
Parker  came  into  the  lecture  room  for  his  Equity  lecture,  he 
found  only  fourteen  students  present.  Mounting  the  platform, 
he  turned  and  smiled  benignly  upon  us,  gazing  over  his  gold 
bowed  spectacles,  and  solemnly  said:  'He  that  endureth  to  the 
end  shall  be  saved.'  " 

It  has  been  said  of  him  that  "though  deeply  respected  for  his 
thoroughness,  he  was  precise,  minute  and  involved,  to  the  point 
of  obscurity.  If  a  single  step  of  his  logic  was  lost  by  the  listener, 
farewell  to  all  hope  of  following  to  the  conclusion.  His  law  on 

(i)  Speech  at  the  Dinner  at  the  Qth  Annual  Meeting  of  the  Harvard 
Law  School  Association,  June  25,  1895,  "in  especial  honor  of  Christopher 
Columbus  Langdell." 


308  HARVARD  LAW  SCHOOL. 

any  given  question  was  sound,  absolutely  and  exasperatingly 
sound,  but  he  could  no  more  give  a  comprehensive  view  of  a 
whole  topic  than  an  oyster,  busy  in  perfecting  its  single  pearl, 
can  range  over  the  ocean  floor.  In  private,  however,  the  Chief 
Justice  was  always  interesting  and  often  witty.  He  was  of  high 
breeding,  constant  hospitality,  strong  religious  convictions — of 
inflexible  integrity  and  a  blunt,  outspoken  sincerity.  ...  If 
Parsons  was  suaviter  in  modo,  Parker  was  fortiter  in  re.  A  good 
standup  fight  was  meat  and  drink  to  him."(i) 

Horace  Davis  (L.  S.  1850-51)  of  San  Francisco,  Cal., 
writes : 

Parker  was  rather  stiff  and  formal  in  manner,  but  he  com- 
manded our  sincere  respect.  He  felt  kindly  to  us  and  was  kind, 
but  he  didn't  know  how  to  unbend.  Parsons  was  genial  and  easy 
in  demeanor,  rather  more  of  a  man  of  the  world,  more  accessible 
than  Parker,  but  I  don't  know  that  we  really  liked  him  any  better. 
Behind  the  awkward  gravity  of  Parker  and  his  queer  flat  voice, 
we  felt  that  he  liked  us ;  and  we  reciprocated  it.  I  called  fre- 
quently on  both  Professors  at  their  houses,  and  was  sometimes 
invited  to  tea  at  Judge  Parker's.  Later  on  in  the  term  we  at- 
tended a  grand  reception  at  the  house  of  each  Professor  to  which 
all  the  students  were  invited. 

Charles  R.  Codman  (L.  S.  1851-52),  of  Boston,  writes: 

His  lectures  on  Equity  were  very  dry,  but  his  Moot  Court 
opinions  were  remarkable,  wonderfully  clear  and  strong.  He  was 
much  liked  and  had  a  beautiful  vein  of  New  Hampshire  humor. 
We  considered  him  the  best  lawyer  of  the  Faculty. 

James  E.  Carmalt  (L.  S.  1862-64),  of  New  York,  writes: 

Parker  made  Chitty's  Pleading  about  as  interesting  as  Web- 
ster's Dictionary.  But  then  Parsons  made  ample  amends  by  mak- 
ing the  Law  of  Contracts  almost  as  fascinating  as  a  Dime  Novel. 

To  the  same  effect  writes  John  D.  Long  (L.  S.  1 860-61)  : 

Joel  Parker — whose  lectures  were  as  inspiring  as  a  Puritan 
sermon  on  the  metaphysics  of  the  freedom  of  the  will ;  Emory 
Washburn,  who  poured  out  the  chapters  of  his  great  big  book  on 
Real  Property  in  a  torrent  over  his  lips,  like  a  brook  over  rocks  in 
spring  time;  and  Theophilus  Parsons,  who  wrote  legal  treatises 


(i)     Old    Times    at    the    Law   School,   by    S.    F.    Batchelder    (L.    S. 
1895-98),  Atlantic  Monthly  (Nov.  1902). 


REMINISCENCES.  309 

almost  as  fast  as  his  prolific  contemporary,  Mrs.  E.  D.  N.  South- 
worth,  issued  her  mild  novels. 

Right  Reverend  Charles  C.  Grafton  (L.  S.  1851-54),  Bishop  of 
Wisconsin,  writes : 

I  had  begun  reading  some  theology  while  in  the  latter  year  of 
my  stay  at  Harvard  and  was  looking  forward  to  Holy  Orders. 
"Is  it — facile  descensus — said  Chief  Justice  Parker  to  me."  "No," 
I  replied,  "It  is — ascensus — for  the  law  is  the  foundation  of  the 
Gospel.  With  what  admiration  we  used  to  follow  his  slow, 
critical,  exact  analysis  in  the  decision  of  the  cases  he  presided 
over.  In  his  kindness  of  heart,  he  once  relieved  my  youthful 
mind  as  to  my  ability  to  enter  the  legal  profession.  A  difficulty 
presented  itself  to  my  mind  on  the  application  of  certain  prin- 
ciples of  law  which  seemed  to  be  in  conflict.  It  was  a  subject  he 
was  lecturing  on.  After  long  puzzling  over  the  matter,  I  gave 
up  in  despair  the  attempt  to  solve  the  difficulties.  I  began  to  think 
I  was  unfitted  for  the  profession.  In  much  tribulation  I  ventured 
to  approach  the  Chief  Justice,  and  with  trembling  knees,  I 
knocked  at  his  door,  and  presented  myself  before  him.  He  raised 
his  spectacles,  and  said  "What  is  it  Mr.  Grafton?"  I  stated  the 
case,  and  the  two  lines  of  argument  on  either  side.  "Please,"  I 
said,  "Tell  me  what  the  law  is."  He  had  listened  with  a  semi- 
curious  smile,  and  when  I  had  finished,  he  said  (And  Oh!  What 
a  relief  it  was  to  me)  "Mr.  Grafton,  I  am  old  enough  to  say  'I 
don't  know'."  I  went  home  happy. 

Ex-Senator  William  E.  Chandler  (L.  S.  1853-55),  said(i) : 

Parker's  opinion  on  a  law  point  was  final  with  us — greatly  re- 
spected— a  sound  and  learned  lawyer.  He  moved  slowly  to  the 
opinion  which  he  expressed,  when  lecturing  on  unsettled  ques- 
tions, or  when  deciding  Moot  Court  cases — and  he  seemed  to  take 
as  much  pains,  and  to  be  as  conscientious  in  reaching  his  con- 
clusion, as  if  they  involved  final  judgments  in  actual  litigation. 
Necessarily,  therefore,  he  had,  in  a  remarkable  degree,  the  respect 
of  his  pupils;  and  as  he  was  as  modest  and  kind  hearted  as  he 
was  learned,  he  also  gained  their  warm  affection.  His  moral 
courage  was  as  great  as  his  modesty. 

John  D.  Bryant  (L.  S.  1855)  writes: 

Parker's  profound  learning  was  enlivened  by  a  sense  of  humor. 
In  what  I  think  was  the  closing  lecture  of  the  year,  Professor 
Parker  gave  some  advice  to  the  students  which  he  hoped  might 
be  of  service  to  them  after  leaving  the  School.  It  was  to  the 
effect  that  at  the  close  of  a  hard  day's  work  in  court,  instead  of 

(i)     Address  before  Grafton  and  Coos  County  Bar  Ass.   (1888). 


310  HARVARD  LAW  SCHOOL. 

taking  home  the  testimony  of  the  witnesses  and  reading  it  over, 
and  possibly  looking  up  the  law  applicable  thereto,  the  rest  of  the 
day  and  evening  should  be  spent  in  recreation  and  rest.  The 
Professor  added :  "I  make  this  recommendation,  gentlemen, 
with  the  more  confidence  from  never  having  tried  it  myself." 

Henry  N.  Blake  (L.  S.  1856-58),  Judge  of  the  Supreme  Court 
of  Montana,  writes: 

Parker's  style  was  not  attractive  and  his  lectures  were  not 
popular.  He  committed  the  error  of  some  teachers  who  forget 
that  the  pupil  is  to  be  instructed  and  is  not  an  equal  in  learning. 
But  what  he  said  was  accepted  without  a  question  and  with  proper 
respect. 

George  S.  Hale  (L.  S.  1845-46)  wrote(i)  : 

By  the  law  students  he  was  generally  looked  upon  as  the  deep 
repository  of  all  legal  knowledge.  Though  he  was  a  man  of 
genial  feelings,  yet  his  general  manner  was  one  of  extreme  quiet ; 
and  he  made  no  efforts  for  personal  popularity.  But  he  had  from 
all  his  pupils,  at  all  times,  the  deepest  respect  and  from  those  who 
were  so  fortunate  as  to  have  with  him  a  personal  acquaintance, 
the  warmest  affection. 

As  a  mere  teacher  of  the  general  number  of  young  law  stu- 
dents, some  of  Judge  Parker's  colleagues  have  been  his  superiors. 
To  such  as  were  eager  laborers  in  the  learning  of  the  law,  he  was 
a  most  valuable  instructor.  All  who  ever  heard  him  will  recall 
the  quiet  and  dignified  manner  in  which  he  entered  the  lecture 
room,  paying  no  apparent  attention  to  the  short  round  of  applause 
which  by  custom  had  become  the  ordinary  salutation  to  the  Pro- 
fessors on  their  entrance.  His  hat  was  laid  by  his  side.  There 
was  no  elaborate  introduction ;  an  utter  absence  of  ornament,  or 
of  any  attempt  at  literary  embellishment.  But  the  lecturer's  hour 
was  given  to  the  clearest  statement  of  legal  principles,  the  keen 
dissection  of  cases,  and  oftentimes  to  the  warmest  discussion 
of  what  he  deemed  heresies  of  the  law.  His  manner  in  the 
lecture  room,  as  elsewhere,  was  almost  invariably  one  of  com- 
plete repose.  But  when  defending  some  of  his  statements  of 
legal  points  that  might  have  been  at  some  time  questioned,  or 
when  attacking  principles  which  he  deemed  unsound,  the  tone  of 
his  voice  would  become  warm ;  the  manner  would  still  be  utterly 
free  from  the  least  approach  to  violence;  but  the  statement  of 
theories  and  principles  was  abandoned,  and  his  discussions  took 
the  shape  almost  of  personal  combats. 

.  .  .  .  His  legal  learning  was  wide  and  exhaustive.  Plead- 
ing and  constitutional  law  were  apparently  his  greatest  delights ; 

(i)     See  American  Law  Review,  Vol.  X  (1875). 


REMINISCENCES.  311 

and  in  the  whole  country  the  profession  could  show  scarcely  his 
equal  in  those  branches. 

It  was  said  of  Judge  Parker  that,  while  on  the  bench,  he  was 
occasionally  given  to  deciding  cases  on  points  that  had  escaped 
the  penetration  of  counsel.  .  .  .  The  thing  certainly  did 
happen  not  unfrequently  in  cases  heard  before  him  in  the  Moot 
Courts  of  the  Law  School.  His  statements  of  fact  in  the  cases 
given  to  the  students  for  argument,  were  always  full  and  exact, 
and  always  fairly  showed  to  a  lawyer  the  points  in  issue.  Yet  to 
the  sucklings  of  the  law,  by  whom  the  cases  were  to  be  argued, 
the  points  to  be  discussed  were  not  always  apparent;  and  there 
were  sometimes  humorous  scenes,  when,  after  elaborate  argu- 
ments, laden  with  Southern  eloquence  and  Western  rhetoric, 
Judge  Parker  would,  in  the  most  courteous  and  kindly  manner, 
quietly  suggest,  in  his  opinion,  that  there  might,  by  possibility,  be 
points  in  the  case  of  more  controlling  power  to  the  judicial  mind 
than  those  which  had  been  argued. 

Were  I  to  indicate  that  quality  in  him,  writes  an  old  pupil, 
which  impressed  me  most,  I  would  say  he  was  the  most  manly 
man  I  ever  met.  No  one  could  be  in  his  presence  without  feeling 
the  stimulus  to  noble  and  high  endeavor. 

THEOPHILUS    PARSONS. 

While  Professor  Parker  was  respected,  and  Professor  Wash- 
burn  was  loved  by  the  students,  Professor  Parsons  was  the  in- 
structor who  most  thoroughly  interested  and  entertained  them. 

As  Charles  R.  Codman  (L.  S.  1851-52),  of  Boston,  writes: 

Everybody  was  fond  of  Parsons.  He  was  perhaps  more  of  a 
man  of  the  world  than  Judge  Parker,  and  less  of  a  professional 
man.  He  was  very  fond  of  getting  the  students  around  him  and 
giving  them  reminiscences  of  Judge  Story  and  Webster,  etc.  If 
he  came  into  the  library  when  we  were  at  work  there,  we  all 
stopped  work  to  see  if  we  could  get  the  Professor  to  gossip  with 
us,  and  there  was  never  much  difficulty  in  getting  him  to  do  so. 

S.  F.  Batchelder  (L.  S.  1895-98),  a  grandson  of  Professor 
Washburn,  writes(i)  : 

Parsons  was  a  fascinating  lecturer,  a  most  genial  and  social 
man.  I  am  indebted  to  Professor  Langdell  for  the  following 
characteristic  reminiscence  of  him :  "It  was  the  custom  in  the 
old  days,  on  the  first  day  of  each  term,  for  the  students  to  as- 
semble in  the  library  for  the  purpose  of  meeting  the  Professors, 
and  listening  to  an  address  from  one  of  them.  .  .  .  On  one 
occasion,  when  Professor  Parsons  delivered  the  address,  he  ex- 
plained to  the  new  students  that.  .  .  .  they  had  to  study 

(i)     Old  Times  at  the  Harvard  Law  School,  by  S.  F.  Batchelder. 


312  HARVARD  LAW  SCHOOL. 

English  decisions  very  diligently.  'Do  you  ask  me,'  said  he,  'if 
we  have  not  achieved  our  independence,  if  we  are  still  governed 
by  England?  No,  gentlemen,  we  have  not  achieved  our  inde- 
pendence. England  governs  us  still,  not  by  reason  of  force  but 
by  force  of  reason.'  "  Parsons  was  really  more  of  a  litterateur 
that  a  lawyer.  He  openly  expressed  his  dislike  of,  and  inability 
for,  the  more  technical  parts  of  the  law,  such  as  Pleading  and 
Property.  He  had  a  certain  poetic  dreaminess  of  temperament 
that,  while  apparently  not  interfering  with  his  professional  suc- 
cess, did  seriously  affect  his  financial  affairs,  which  constantly 
suffered  from  his  credulity  and  over-sanguine  expectations.  An 
indefatigable  writer  of  textbooks,  he  possessed  that  unusual  legal 
accomplishment, — a  charming  literary  style.  He  clothed  his 
propositions  in  such  a  pleasing  form  that,  like  sugar-coated  pills 
of  legal  lore,  they  were  swallowed  and  assimilated  with  the  min- 
imum of  effort  and  the  maximum  of  enjoyment.  His  works  were 
even  more  popular  than  Story's.  It  is  said  that  his  Contracts 
achieved  the  largest  sale  of  any  law  book  ever  published.  Seven 
other  treatises  stand  to  his  credit,  on  one  of  which  alone  he  is 
reported  to  have  netted  a  profit  of  $40,0x30.  His  lectures,  for 
clearness,  scope,  and  literary  excellence,  have  often  been  com- 
pared to  those  of  Blackstone.  He  delighted  in  laying  down  broad 
views  of  the  subject,  sometimes  carrying  his  generalizing  to  an 
extreme. 

Parsons  resembled  Judge  Story  greatly  in  his  remarkable 
powers  of  conversation.  One  of  his  friends  and  neighbors  wrote 
of  him,  on  his  death  ( I )  : 

What  a  wonderful  master  of  conversation  he  was.  With 
wealth  of  learning,  superior  as  it  seems  to  me  to  Johnson's  ;  readi- 
ness and  quickness  equal  to  his,  there  was  added  a  brilliant  wit 
to  which  Johnson  could  lay  no  claim ;  and  above  all  a  kindness  of 
manner  and  sweetness  of  disposition  almost  altogether  lacking 
in  the  reports  of  John's  conversations.  Full  of  apposite  anec- 
dote, brilliant  witticism  and  ready  yet  kindly  repartee. 

Of  his  lectures  Judge  R.  M.  Benjamin  (L.  S.  1854-55),  of 
Bloomington,  111.,  writes :  "Parsons  had  the  rare  ability  to  make 
his  law  lectures  as  interesting  as  the  Lyceum  or  platform  lectures 
so  popular  at  that  time  throughout  New  England." 

If  Parsons  had  his  faults — if  he  was  sometimes  a  little  super- 
ficial, sometimes  a  little  selfish,  sometimes  a  little  insincere, — 
these  qualities  did  not  detract  from  the  charm  of  his  lovable 

(r)  Memorial  of  T.  Parsons,  written  for  the  Cambridge  Magazine 
Club,  by  Gilbert  Hawkes,  April  5,  1882. 


REMINISCENCES.  313 

personality,  and  the  fascination  which  his  presence  and  speech 
exercised  upon  his  pupils.  "I  remember  the  saintly  face  of  Pro- 
fessor Parsons.  It  was  a  benediction  to  be  in  his  presence.  He 
would  have  well  graced  a  bishop's  mitre,"  writes  M.  A.  Johnson 
(L.  S.  1871-72). 

Ex-Senator  William  E.  Chandler  (L.  S.  1853-55),  said: 

He  was  exceedingly  attractive  to  young  men.  Affluent  in 
language  and  gifted  in  extemporaneous  speech,  he  had  a  wide  and 
ready  knowledge  of  legal  principles  and  precedents.  He  wrote 
law  books  con  amore,  to  which  he  brought — a  clearness  of  state- 
ment, and  ingenuity  of  conception  and  illustration,  peculiarly  his 
own.  His  ever  active  geniality  and  his  ready  command  of  all  his 
mental  resources  especially  qualified  him  as  a  co-worker  in  the 
School  with  his  more  profound  but  less  demonstrative  colleague : 

Judge  Henry  N.  Blake  (L.  S.  1856-58),  writes:  "Parsons  had 
many  arts  of  a  politician,  and  expressed  a  high  opinion  of  the 
Supreme  Courts  of  every  State  in  the  Union,  on  different  occa- 
sions through  the  year." 

A  characteristic  bit  of  his  humor  is  narrated  by  Charles  H. 
Owen  (L.  S.  1861-63)  : 

The  students  in  the  lecture  room  were  encouraged  to  ask  ques- 
tions. A  crude,  middle  aged  student,  who  had  already  been  sus- 
pected of  getting  opinions  for  use  of  the  firm  of  lawyers  of 
which  he  had  been  formerly  a  member,  once  occupied  some  time 
in  stating  a  case,  and  concluded,  "If  the  facts  are  thus  can  A  sue 
B?"  Parsons  answered  rapidly  and  emphatically:  "Certainly 
he  can — not  the  least  doubt  of  it.  Would  any  student  like  to  ask 
another  question?"  From  the  front  bench  someone  asked,  hesi- 
tatingly, "Could  A  recover  anything?"  Parsons  answered  again 
rapidly,  "Not  a  cent — not  before  any  competent  judge." 

EMORY    WASHBURN. 

Of  the  three  Professors,  Washburn  was  the  one  who  took  the 
most  immediate  and  personal  interest  in  the  students  individu- 
ally. At  his  room  in  Dane  Hall  and  at  his  house  in  Quincy 
Street,  they  thronged  for  advice  on  all  kinds  of  topics,  legal, 
moral,  social  and  political.  A  very  adequate  and  unexaggerated 
summary  of  his  work  and  personality  is  given  by  his  grandson, 
S.  F.  Batchelder.  as  follows(i)  : 


(i)     Old  Times  at  the  Harvard  Law  School. 


314  HARVARD  LAW  SCHOOL. 

His  interests  were  broad  and  varied.  .  .  He  was  a  copious 
writer  for  the  press,  and  was  in  constant  demand  as  a  speaker. 
His  public  spirit  was  unflagging  and  direct.  Governor  Bullock 
tells  of  seeing  him,  during  wartime,  marching  as  a  private  in  the 
"home  guard"  at  a  military  funeral.  When  Bullock  expressed 
his  surprise  at  the  humble  part  taken  by  a  former  chief  executive, 
Washburn,  at  that  time  considerably  over  sixty  years  old,  replied 
quite  simply,  "Oh  yes,  I  have  done  this  often,  sometimes  at  night. 
I  like  to  help  along  when  I  can." 

Washburn  had  an  enormous  capacity  for  work.  He  seemed  to 
have  mastered  the  art  of  living  without  sleep.  From  an  early 
morning  hour  till  far  into  the  night  he  was  to  be  found  at  the 
School  in  his  "private"  office.  Never  was  there  a  more  delicious 
misnomer,  for  he  was  deluged  with  an  unending  stream  of  callers, 
friends,  strangers,  students,  politicians,  and  clients.  Despite  them 
all,  however,  and  the  demands  of  his  teaching  and  practice,  he 
managed  to  produce  a  number  of  professional  works  of  the  high- 
est excellence,  notably  those  on  Easements  and  on  Real  Property, 
which,  in  constantly  appearing  new  editions,  continue  to  be  the 
standards  of  to-day. 

As  a  lecturer  he  was  delightful.  So  great  was  his  popularity 
that  it  was  not  uncommon  for  undergraduates  and  members  of 
other  departments  to  stroll  over  to  the  law  lectures  "just  to  hear 
Washburn  awhile."  His  prodigious  power  of  throwing  himself 
body  and  soul  into  the  case  before  him,  be  it  that  of  actual  client 
or  academic  problem,  joined  to  his  long  experience  and  public 
prominence,  gave  assured  weight  to  his  words ;  while  his  wonder- 
fully winning  personality,  his  genial  spirit  and  his  well-remem- 
bered hearty  laugh  gained  him  the  love  and  esteem  of  every 
listener. 

Indeed,  Professor  Washburn  will  go  down  in  the  history  of 
the  School,  above  all  his  professional  excellencies,  as  pre-eminent 
for  his  humanity.  Mr.  Brandeis,  in  his  sketch  of  the  School, 
epitomizes  him  as  the  most  beloved  instructor  in  its  annals. 
Every  student  seemed  the  especial  object  of  his  solicitous  interest. 
He  not  only  acted  as  director,  confessor,  and  inspirer  of  his 
pupils  during  their  stay  in  Cambridge,  but  somehow  found  time 
to  correspond  with  them,  often  for  years,  after  they  had  scattered 
throughout  the  length  and  breadth  of  the  land. 

His  lectures  on  The  Study  and  Practice  of  the  Law,  which 
were  published  in  book  form  in  1871,  show  clearly  the  immense 
regard  for  the  dignity  of  the  profession  which  he  himself  enter- 
tained, and  which  he  impressed  upon  his  pupils  each  year.  "These 
eloquent  lectures,"  writes  H.  E.  Ware  (L.  S.  1868-69),  "created 
high  enthusiasm." 

Mention  has  always  been  made  of  his  remarkable  lecture  on 


<iX* 


REMINISCENCES.  315 

Professional  Training  as  an  Element  of  Success  and  Conseri-atii'c 
Influence,  before  the  outbreak  of  the  civil  war,  and  through- 
out the  war,  Washburn  was  constantly  inculcating  in  his  lectures 
the  highest  ideals  of  civic  and  professional  morality  and  standards 
of  conduct. 

He  demanded  much  of  his  students  and  he  received  much  in 
return  in  the  line  of  study.  "Work  under  Washburn  we  were 
ashamed  not  to  try  to  perform  with  reasonable  diligence.  Our 
doubts  and  lack  of  understanding  were  always  helpfully  assisted, 
and  we  were  shown  where  light  would  be  found  and  on  what 
musty  shelves  to  look  for  it,  he  saying,  in  his  quaint,  sympathetic 
way,  'Young  man,  I  could  easily  explain  this  point,  but  it  would 
be  much  better  for  you  to  look  it  up,'  "  writes  James  E.  Carmalt 
(L.  S.  1862-64),  of  New  York. 

Washburn's  sympathy  with  the  trials  and  hardships  of  the 
young,  struggling  lawyer  was  very  genuine,  and  he  was  always 
reaching  out  a  helping  hand  to  the  younger  graduates.  Mr. 
Carmalt  relates  this  further  incident: 

At  the  end  of  one  of  our  terms,  the  student  body  asked  the 
Professor  to  devote  a  special  lecture  to  the  students  on  his  early 
experience  as  a  practising  lawyer.  After  holding  us  intensely 
interested  for  considerably  over  an  hour,  he  came  to  his  perora- 
tion. Then  his  voice  began  to  give  way,  and  he  came  to  a  full 
stop.  He  backed  up,  and  started  over  again.  Again  he  fell  down. 
Abandoning  his  manuscript  and  looking  over  his  glasses  in  the 
old  sympathetic  way,  "Gentlemen,  I  thought  I  couldn't  trust  my- 
self to  express  to  you  extemporaneously  my  sympathy  for  you  in 
your  future  work ;  and  if  I  could  have  written  as  clearly  and 
legibly  as  many  of  the  papers  you  have  submitted  to  me,  I  could 
have  read  what  I  thought  was  a  very  proper  conclusion  of  my 
statement."  Our  smile  was  so  gruesome,  one  could  scarcely  tell 
who  was  the  most  sorry,  the  teacher  or  the  students. 

Rev.  A.  P.  Peabody,  on  the  death  of  Washburn,  penned  the  fol- 
lowing sympathetic  characterization  ( I )  : 

He  was  a  model  Professor.  He  not  only  met  all  the  require- 
ments of  his  office  with  characteristic  punctuality,  constancy  and 
faithfulness,  but  he  at  the  same  time  maintained  the  most 
familiar  and  kindly  intercourse  with  his  pupils,  receiving  them 
cordially  at  his  private  room  (which  yet  was  never  private)  and 

(i)  Memoirs  of  Emory  Washburn,  by  A.  P.  Peabody  in  Mass.  Hist. 
Soc.  Proc.,  Vol.  XVIII,  (1879-80). 


3i6  HARVARD  LAW  SCHOOL. 

at  his  house,  directing  their  reading,  solving  their  difficulties,  re- 
lieving their  pecuniary  embarrassments,  and  continuing  to  render 
them  every  service  in  his  power  after — often  long  after — they 
had  left  the  University.  Above  all,  availing  himself  of  his  op- 
portunity as  their  instructor  in  the  law,  he  trained  them  by  un- 
remitting precept,  and  still  more  by  conspicuous  example,  to  the 
honest,  manly  exercise  of  their  profession,  and  to  the  culture 
of  those  traits  of  moral  excellence  which  alone  can  make  it  hon- 
orable and  noble. 

Both  Professor  Parsons  and  Professor  Washburn  were  ad- 
dicted to  relating  certain  stories  and  using  quaint  expressions, 
which,  as  they  were  repeated  from  year  to  year,  gradually  became 
Law  School  traditions.  "Each  year,"  writes  Henry  H.  Sprague 
(L.  S.  1865-66),  the  class  laughed  out  of  sympathy  at  Professor 
Parsons  old  story  of  'Be  bold,'  etc.,  and  some  effort  was  made 
in  my  time  to  imitate  the  example  of  a  previous  year  of  receiving 
the  story  in  dead  silence,  but  it  was  concluded  best  not  to  bother 
the  Professor." 

G.  W.  C.  Noble  (L.  S.  1860-61),  writes,  "About  all  I  remember 
of  Parsons'  lectures  was  the  dramatic  way  he  used  to  describe 
'the  ship  was  a  total  wreck' ".  Others  recall  his  frequent  use  of 
the  expression,  "a  forged  will  is  a  shadow ;  the  will  of  a  live  man, 
a  shadow  of  a  shade."  Many  of  his  pupils  remember  in  great 
detail  his  frequently  repeated  but  entertaining  stories  of  his 
father,  the  great  Chief  Justice  Theophilus  Parsons,  and  of  his  own 
acquaintance  with  William  Pinkney  (whom  he  visited  when 
Pinkney  was  Minister  to  Russia  in  1815),  Rufus  Choate,  Daniel 
Webster,  Judge  Story,  and  Chief  Justice  Marshall. 

Among  the  peculiarities  of  Professor  Washburn  readily  re- 
called by  his  pupils  were  the  frequent  use  in  his  lectures  of  the 
hypothetical  case,  "Now,  Mr.  X,  suppose  you  marry  my  daugh- 
ter M ",  and  his  amusingly  Yankee  pronounciation  of  Latin 

and  French  legal  phrases.  So,  too,  one  of  the  best  remembered 
incidents  of  Professor  Parker's  lectures  is  his  unfailing  account 
of  how  the  United  States  Supreme  Court  decided  his  famous 
Piscataqua  Bridge  case  wrongly,  because  one  of  the  judges  was 
in  a  hurry  to  get  away  from  the  argument  to  pack  his  bag — "the 
carpet  bag  decision".  His  curious  pronunciation  of  words  like 
"parties" — "pareties" — will  also  be  recalled  as  the  reason  for 
the  students  calling  him  "Judge  Pare-ker." 

Details  like  these  may  seem  insignificant  but  they  were  all  part 


REMINISCENCES.  317 

of  the  life  of  the  School  of  that  generation,  and  combined  with 
the  contrasting  individualities  of  the  Professors  as  shown  in  their 
different  methods  of  instruction,  left  their  impress  on  the  stu- 
dents. 

Parker  was  accustomed  to  taking  up  a  certain  number  of  pages 
of  the  text  book  and  lecturing  precisely  on  the  questions  therein 
stated.  Parsons  gave  more  life  to  his  courses  by  the  introduction 
of  more  extemporaneous  matter  and  by  eliciting  discussion  among 
the  students. 

Washburn  read  his  lectures  from  carefully  prepared  manu- 
scripts, using  the  text  books  chiefly  as  authorities  to  be  cited. 

All  three  of  the  Professors  required  at  stated  times  recitations 
by  the  students  of  portions  of  the  text  books  previously  given  out 
to  be  studied.  These  recitations  were,  however,  entirely  volun- 
tary and  optional  on  the  part  of  the  students,  and  the  practice 
grew  up  of  allotting  one  of  the  three  divisions  of  the  seats  in  the 
lecture  room  to  those  who  did  not  desire  to  be  questioned.  The 
loafers  and  the  unprepared,  therefore,  always  took  their  seats  in 
this  right  hand  section — which  came  to  be  known  as  "Oregon," 
from  its  aloofness. 

Description  of  the  Professors  between  1850  and  1870  would  be 
incomplete  without  some  notice  of  their  constant  coadjutor  and 
sometimes  tyrant — the  janitor  of  Dane  Hall,  John  Sweetnam. 
This  interesting,  arbitrary,  genial,  obliging,  crusty — such  are  the 
contradictory  terms  in  which  he  is  described  by  the  students 
whom  he  ruled — personage  had  been  born  and  bred  for  a  parish 
priest  in  Ireland.  "He  had  come  to  this  country  and  fallen  upon 
evil  days,  being  glad  to  get  a  job  at  street  digging.  President 
Quincy,  passing  one  day,  was  amazed  at  a  red  head  emerging 
from  a  trench  and  quoting,  in  excellent  Latin,  the  lines  from  the 
Bucolics  concerning  the  pleasures  of  the  husbandman.  He  took 
the  orator  into  his  own  service,  but  finding  him  perhaps  too  much 
of  a  handful,  turned  him  over  to  the  Law  School.  Here  he  be- 
came an  autocrat.  His  professional  duties,  as  popularly  under- 
stood, he  limited  to  opening  the  doors  in  the  morning  and  locking 
them  at  night.  He  was  deeply  aggrieved  if  asked  even  to  replace 
library  books  left  on  the  tables,  and  seizing  on  the  maxim  so  fre- 
quently used  in  Torts,  modified  it  to  suit  his  own  purposes  thus : 
'Sic  utere  libris  ut  me  non  laedas.'  But  he  invented  other  and 
higher  duties.  He  attended  all  the  lectures,  and  subsequntly  gave 
the  speaker  the  benfit  of  his  criticism,  on  both  delivery  and  doc- 


318  HARVARD  LAW  SCHOOL. 

trine.  He  exercised  a  general  supervision  over  all  matters  con- 
nected with  the  School,  and  in  his  later  years  became  a  terror  to 
every  one  in  or  near  it.  But  he  was  at  last  displaced  by  the  wave 
of  reform  that  swept  over  the  School  about  1870." 

So  he  was  described  by  S.  F.  Batchelder. 

In  the  following  chapter,  a  more  accurate  account  is  given  of 
his  many  labors  in  the  Library. 

In  the  late  fifties,  he  had  accumulated  considerable  money,  and 
owned  a  house  near  the  Charles  River,  in  which  many  law  stu- 
dents had  rooms. 


CHAPTER  XXXVIII. 
THE  MARSHALL  AND  OTHER  LAW  CLUBS. 

In  one  particular  side  of  the  social  life  of  the  students,  Pro- 
fessors Parker,  Parsons  and  Washburn  took  especial  interest, — 
the  promotion  of  the  Law  Clubs.  These  clubs — the  Coke,  the 
Marshall,  the  Kent,  the  Bracton,  the  Fleta,  and  others  had  been 
in  existence  for  many  years,  (the  Marshall  dating  back  to  1825 
in  Professor  Stearns'  regime)  though  varying  greatly  in  vigor  at 
different  periods  of  the  School.  They  consisted  generally  of  eight 
students  from  each  class,  who  were  elected,  partly  from  their 
social  prominence,  partly  for  their  legal  ability,  the  latter  factor, 
however,  predominating.  The  meetings  of  these  clubs  were  held 
in  the  library  of  Dane  Hall,  and  owing  to  their  number  were  a 
serious  interruption  to  library  work  by  the  students,  the  Library 
being  occupied  practically  every  night  of  the  week,  or  afternoon, 
except  on  Saturday. (i) 

The  President's  Annual  Report  in  1850-51  said  of  these  law 
clubs : 

The  clubs  formed  by  the  students  for  the  discussion  of  cases 
and  points  of  law,  and  in  this  and  other  modes  aiding  each  other 
in  their  studies,  may  not  have  been  in  quite  as  active  operation 
as  in  some  previous  years,  and  this  is  to  be  regretted  as  their 
value  is  undoubted. 

And  in  1851-52: 

The  clubs  formed  by  the  students  for  the  discussion  of  cases 
and  for  debate  have  been  numerous,  active,  and  very  useful. 

And  in  1853-54: 

The  clubs  of  the  students  for  discussion  and  debate,  and  the 
argument  of  cases  have  every  facility  and  encouragement  offered 
them  by  the  Faculty,  and  have  been  numerous,  and  carried  on 
with  great  energy  and  success. 


(i)  So  states  a  letter  from  Professor  Parsons  to  the  Corporation 
Dec.  21,  1852,  advising  the  increase  of  the  salary  of  Mr.  Sweatnam  the 
janitor  of  Dane  Hall,  from  $30  to  $40  per  month. 


320  HARVARD  LAW  SCHOOL. 

And  in  1856-57: 

The  students  continue  to  form  many  clubs  for  discussion  and 
debate,  and  for  the  argument  of  cases.  The  Faculty  regard  these 
clubs  as  eminently  useful,  and  provide  rooms  for  them,  and  books 
and  attendance,  and  all  other  facilities  and  encouragement  in  their 
power.  .  .  . 

No  detailed  account  of  most  of  these  early  law  clubs  can  be 
given,  for  their  record  books,  if  any  such  were  kept,  have  all 
disappeared.  From  letters  received  by  the  author  from  men  who 
were  students  between  1850  and  1870,  it  would  appear  that  the 
clubs  were  largely  made  up  according  to  previous  affiliations  of  the 
students,  men  from  the  same  college  joining  the  same  club,  thus 
the  Kent  Law  Qub  was  largely  composed  of  Yale  students. 

J.  C.  Douglass  (L.  S.  1855-57)  writes  (1908)  : 

In  1856-1857  there  were  several  law  clubs  among  the  stu- 
dents. Of  these  the  Marshall  and  the  Coke  were  considered  the 
best,  and  the  membership  therein  the  most  desirable.  I  was  a 
member  of  both  these  clubs,  and  cannot  speak  from  personal 
knowledge  of  the  others.  Our  clubs  were  for  the  benefit  of  the 
members  only,  they  were  chiefly  for  debate,  and  the  consideration 
of  legal  and  constitutional,  and  occasionally  of  Political  questions. 
The  debates  were  earnest  and  spirited,  though  orderly  and  dig- 
nified. As  at  that  time  the  questions  of  slavery  and  free  soil 
overshadowed  all  others  in  Congress  and  among  the  people,  so 
their  discussions  in  the  clubs  were  inevitable. 

C.  C.  Grafton  (L.  S.  1851-54)  writes  (1907),  that  Langdell 
got  him  into  the  Coke  Club  in  which  there  were  then  Joseph  G. 
Choate,  W.  G.  Choate,  James  C.  Carter,  W.  E.  Chandler,  George 
O.  Shattuck  and  William  H.  Herbert. 

Charles  R.  Codman  (L.  S.  1851-52)  who  also  belonged  to  the 
Coke  Club  with  Langdell  writes : 

We  usually  argued  some  case  that  was  on  the  Moot  Court 
docket,  but  which  had  not  been  decided.  The  student  who  was 
judge  gave  his  decision  immediately  after  the  argument.  Some- 
times he  made  a  wrong  decision,  or  at  least  it  was  not  the  decision 
of  the  Professor  when  the  case  was  argued  in  the  Moot  Court, 
and  when  it  was  the  reasons  were  apt  to  be  very  considerably 
different  from  those  given  by  the  Club  judge — all  of  which  was 
a  source  of  much  amusement. 

E.  W.  Kittredge  (L.  S.  1855-56)  writes  (1907),  that  he  was 


60 


LAW   CLUBS.  321 

a  member  of  the  Coke  Club  which  then  included  John  D.  Wash- 
burn,  Robert  S.  Rantoul,  George  Bliss,  Henry  Crawford,  Rufus 
Choate,  Jr.,  David  H.  Coolidge,  W.  G.  Boardman,  Leavitt  Hunt, 
and  Robert  Treat  Paine. 

By  a  lucky  chance,  the  Record  Book  of  the  Marshall  Club, 
containing  its  proceedings  between  1860  and  1876,  has  been  pre- 
served and  placed  in  the  hands  of  the  author  by  the  Secretary  of 
the  Club  (1875-76),  Henry  P.  Starbuck  of  Santa  Barbara,  Cali- 
fornia. Mr.  Starbuck  writes  that  the  Club  "was  killed  by  the 
superior  prestige  of  the  Pow  Wow  (founded  in  1870)  which 
enabled  the  latter  club  to  draw  off  the  former's  members."  As 
the  book  contains  the  autograph  signatures  of  many  lawyers,  since 
famous,  and  also  a  full  account  of  the  methods  on  which  the 
club  of  those  days  was  carried  on,  a  somewhat  full  resume  of  the 
records  cannot  fail  to  be  of  interest. 

The  first  two  pages  of  the  book  contain  the  following  state- 
ment: 

In  or  about  the  year  A.  D.  1825,  certain  students  of  the  Dane 
Law  School,  desirous  of  improving  themselves  in  the  study  of  the 
Law  and  fitting  themselves  to  become  more  ready  in  argument 
and  more  thorough  in  research,  and  at  the  same  time,  desirous  of 
cultivating  friendly  intercourse  and  social  amenity  one  with  the 
other,  organized  themselves  into  a  Law  Club  or  society,  and 
adopted  as  their  distinguished  appellation  the  name  of  the  Mar- 
shall Club,  thus  appropriating  to  themselves  the  name  of  the 
eminent  Chief  Justice,  in  order  that  they  might  ever  keep  in  mind 
his  legal  characteristics,  perfect  fairness,  as  a  judge,  and  thorough 
and  well  balanced  investigation  as  a  lawyer.  Since  which  time, 
this  Club  has  prospered,  governed  by  its  traditionary  rules,  which, 
like  the  Common  Law,  vested  firmly  the  right  of  question  at  the 
present  day. 

The  present  members  of  the  Club,  while  yielding  to  no  one  in 
respect  for  the  antiquity  of  their  society,  or  the  dignity  of  its  tra- 
ditions, have  deemed  it  expedient,  owing  to  the  constant  changes 
among  the  members  of  the  Club,  necessarily  arising  from  the 
nature  of  the  Law  School,  to  establish  a  written  Constitution  and 
Laws,  thus  confirming  by  a  Civil  Code,  as  it  were,  the  Common 
Law  under  which  the  Club  has  for  so  long  a  period  existed. 

In  accordance  with  such  determination,  at  a  meeting  of  the 
Club  held  on  the  tenth  day  of  September,  1857,  Mr.  J.  C.  Hey- 
wood  of  Washington,  D.  C.,  in  the  chair,  a  committee  of  three 
consisting  of  Messrs.  C.  F.  Child  of  New  York,  Wilder  of  Mas- 
sachusetts, and  Williamson  of  Maryland  were  appointed  to  pre- 
pare such  constitution  and  laws.  On  the  fourteenth  day  of  Sep- 
21 


322  HARVARD  LAW  SCHOOL. 

tember  A.  D.  1857,  the  report  of  such  committee  was  accepted, 
and  after  some  amendments  adopted  as  the  Constitution  of  the 
Marshall  Club. 

The  first  three  Articles  of  this  Constitution  were  as  follows : 

Article  I.    This  Club  shall  be  called  the  Marshall  Club. 

Article  II.  The  objects  of  this  Club  shall  be  the  promotion  of 
legal  knowledge  and  friendly  intercourse  between  its  members. 

Article  III.  The  members  of  this  Club  shall  be  students  in  the 
Dane  Law  School,  and  any  member  of  such  Law  School  may 
become  a  candidate  for  membership  of  this  Club. 

The  senior  member  of  the  Club  was  always  President  and  a 
clerk  was  elected  each  term  by  ballot,  no  member  to  hold  the 
office  twice.  The  meetings  were  held  every  week  at  3.00  P.  M.  or 
4.00  P.  M.,  generally  on  Wednesdays,  the  call  for  the  meeting 
being  posted  by  the  clerk,  two  days  in  advance,  in  some  conspicu- 
ous place  in  Dane  Hall.  It  was  the  clerk's  duty,  also,  to  assign 
two  members  to  argue  a  question  of  law  for  the  next  meeting  but 
one  and  to  appoint  some  member  to  sit  as  judge.  On  the  counsel 
thus  assigned  fell  the  duty  of  selecting  a  case  for  argument  and 
of  copying  into  the  Club  Record  Book  a  statement  of  the  facts 
of  the  case  and  delivering  a  statement  to  the  judge.  The  Record 
Book  was  then  to  be  deposited  with  the  Librarian  of  the  School 
for  the  inspection  of  the  Club  members  before  the  day  of  argu- 
ment. 

The  number  of  members  was  twenty-four  and  on  an  election 
two  blackballs  excluded.  If  a  member  absented  himself  from 
meetings  for  three  consecutive  weeks  he  was  censured,  and  if  for 
five,  he  was  requested  to  resign,  "that  his  place  may  be  filled 
more  worthily".  Provision  was  also  made  for  an  "honorable 
dismissal"  in  case  a  member  wished  to  resign.  Strangers  might 
be  introduced  at  Club  meetings  provided  the  members  introducing 
"shall  be  responsible  for  such  stranger's  observance  of  the  ordin- 
ary rules  of  parliamentary  decorum".  From  this  latter  provision 
it  would  seem  as  if  the  arguments  at  the  meetings  occasionally 
became  heated. 

Among  the  members  of  whom  any  written  record  first  exists, 
in  the  September  term  of  1860,  are  to  be  found  the  following 
well  known  names:  John  C.  Gray,  John  D.  Long,  John  C. 
Ropes,  Edward  W.  Hooper,  and  Jeremiah  Smith. 

The  first  recorded  case  is  John  King  v.  Samuel  King,  in  eject- 


LAW  CLUBS.  323 

ment — a  question  of  presumption  as  to  survival.  It  was  argued 
by  E.  R.  Robinson  for  the  defendant,  John  C.  Gray  for  the 
plaintiff.  Judge  J.  W.  Stephenson  found  for  the  defendant,  bas- 
ing his  decision  on  a  statement  of  Professor  Greenleaf,  and  a 
Massachusetts  case  in  8  Metcalf — Gray  (now  Professor  in  the 
Law  School)  thus  losing  his  first  case. 

The  next  case  argued  was  an  actual  one,  which  had  been  tried 
before  Mr.  Justice  Dewey  of  the  Massachusetts  Supreme  Court 
in  1858 — Richmondville  Union  Seminary  v.  Hamilton  Manufac- 
turers Insurance  Company.  Two  noted  lawyers  argued  it — 
John  D.  Long  for  the  plaintiff,  John  C.  Ropes  for  the  defendant. 
The  plaintiff  won  in  an  elaborate  opinion  delivered  by  George  A. 
Torrey,  Judge. 

In  the  third  case,  John  C.  Gray  sat  as  Judge  but  omitted  to 
record  his  decision. 

The  rights  of  a  finder  were  settled  in  a  long,  nine  page  opinion 
by  Judge  Francis  Markoe  Bache  in  a  trover  case,  argued  by 
Edward  W.  Hooper  against  James  A.  Rumrill. 

Jeremiah  Smith  (now  Professor  in  the  Law  School)  won  his 
first  case  but  lost  his  second  case  when  arguing  before  Judge 
Albert  Stickney. 

In  1 86 1,  Judge  Charles  H.  Woodbury  again  decided  a  case 
against  John  C.  Gray  for  the  defendant ;  but  record  is  made  that 
in  trial  of  the  same  case  before  Professor  Washburn  sitting  in  the 
Moot  Court,  the  Professor  decided  in  Gray's  favor,  on  a  point 
in  pleading. 

In  March,  1862,  is  found  an  opinion  by  Judge  William  E. 
Perkins,  commenting  on  the  negligence  of  counsel,  Richard  M. 
Cadwalader  and  William  E.  Lamb,  for  making  the  statement  of 
the  case  cloudy  and  furnishing  no  briefs  to  the  judge. 

In  September,  1862,  the  actual  case  of  Dole  v.  Merchants  In- 
surance Company  was  argued  by  J.  A.  Stephenson  for  the  plain- 
tiff and  Charles  H.  Owen  for  the  defendant,  before  Judge 
George  B.  Young.  Judgment  was  given  for  the  plaintiff  on  the 
ground  that  the  capture  was  by  an  act  of  piracy.  This  was  the 
famous  case  of  a  vessel  captured  by  a  Confederate  privateer  com- 
manded by  Captain  Semmes,  in  which  case  Richard  H.  Dana  and 
Horace  Gray,  Jr.,  appeared  in  the  Massachusetts  Supreme  Court 
against  Benjamin  R.  Curtis  (see  6  Allen  373). 

It  will  be  seen  from  this  that,  in  the  midst  of  the  Civil  War,  the 
Law  Club  was  keeping  abreast  of  the  times. 


324  HARVARD  LAW  SCHOOL. 

Among  the  members  at  this  time  may  be  noted  the  names  of 
George  Gray,  Henry  James,  and  Solomon  Lincoln,  the  former 
first  appearing  as  Judge  in  an  arbitration  case  in  which  he  found 
against  the  defendant,  represented  by  Henry  James.  He  does  not 
appear  to  have  argued  any  case  himself. 

In  1863,  a  number  of  the  cases  argued  were  cases  to  be  later 
argued  in  the  Moot  Courts  before  the  Professors  of  the  School. 
Among  the  more  noted  names  were  those  of  William  G.  Wilson, 
and  William  C.  Whitney. 

In  the  first  term  1864-65  appear  the  names  of  Oliver  Wendell 
Holmes,  Jr.,  William  Everett,  Peter  B.  Olney,  Charles  C.  Bea- 
man,  Jr.,  Robert  T.  Lincoln,  and  Charles  Fairchild.  No  extended 
record  of  cases  appears  however;  and  Frank  W.  Hackett,  clerk, 
notes,  "Records  turned  over  to  me  in  December,  1865,  in  some- 
what of  a  muddled  condition."  The  same  condition  seems  to  have 
existed  when  the  records  were  turned  over  to  Larz  Anderson,  Jr., 
clerk  in  January,  1866. 

In  1866,  among  the  more  prominent  members  were  Moorfield 
Storey  and  J.  Q.  A.  Brackett ;  and  the  records  were  written  up  in 
a  full  and  precise  manner  by  William  A.  Munroe,  clerk,  although 
the  spreading  of  the  judge's  decision  in  full  on  the  records  ap- 
pears to  have  been  abandoned  by  this  time. 

An  average  of  12  to  14  members  appear  to  have  been  present  at 
the  meetings. 

The  following  vote  was  passed : 

Believing  that  the  benefits  resulting  from  the  Marshall  Club 
will  be  increased  and  its  usefulness  extended  by  some  addition 
to  its  present  forms  of  proceeding  therefore  Resolved  that  when 
practicable  the  cases  argued  shall  be  those  which  are  to  be  dis- 
cussed in  the  regular  Moot  Courts. 

It  was  also  voted  to  have  four  counsel  in  each  case  and  to  al- 
low each  counsel  forty  minutes  for  argument. 

In  1868,  record  is  made  that  the  meetings  were  held  in  the  Lec- 
ture Room  of  the  School.  The  attendance  during  the  past  two 
years  had  grown  smaller ;  and  in  June,  a  meeting  was  held  at 
which  only  two  students  were  present. 

About  this  time,  the  meetings  of  the  Club  appear  to  have  oc- 
curred irregularly  at  one,  two,  three  and  four  o'clock  in  the  after- 
noon. In  1869-70  appear  the  names  of  Frederic  Dodge  (now 


LAW  CLUBS.  325 

United  States  District  Judge)  Austen  G.  Fox,  Samuel  Hoar,  and 
James  Barr  Ames.  A  great  revival  in  attendance  appears  to  have 
taken  place  on  May  2,  1870,  the  remarkable  case  of  Hans  Schim- 
mel-pfuringrcichtzsiyh  et  al  r.  Gustav  Schneider  was  argued  by 
Hoar  for  the  defendant  and  J.  T.  Hoague  for  the  polysyllabic 
plaintiff,  before  Judge  James  Grier.  And  in  the  case  of  Buffles  v. 
the  State — Austen  G.  Fox  won  his  first  case,  against  Robert  C. 
Lincoln,  before  Judge  Talbot  J.  Albert — the  question  being 
whether  the  jury  could  judge  law  as  well  as  fact  in  criminal  cases. 

On  Jan.  9,  1871,  James  Barr  Ames  argued  his  first  case  against 
Russell  Gray,  before  Judge  Henry  G.  Pickering  but  the  records 
are  a  blank  as  to  the  winner.  His  next  case,  two  weeks  later, 
against  Frank  D.  Lewis,  he  lost. 

In  1871,  appear  the  names  of  Franklin  G.  Fessenden  (now 
Superior  Court  Judge  in  Massachusetts),  Edward  Q.  Keasbey, 
and  Joseph  D.  Brannan  (now  Professor  in  the  Law  School). 

In  1872,  the  constitution  was  amended  so  as  to  provide  for  a 
court  of  four  judges  who  should  deliver  their  opinions  seriatim 
at  the  same  meeting  at  which  the  case  was  argued.  If  the  court 
was  evenly  divided,  the  opinion  of  the  Chief  Justice  previously 
appointed  by  the  clerk  should  prevail.  In  March,  1872,  the  clerk, 
George  H.  Adams,  records  the  delinquency  of  Judge  Joseph  B. 
Warner  as  follows — "After  the  reading  of  the  minutes  and  a 
great  deal  of  time  totally  and  wholly  wasted  and  lost  in  waiting 
for  the  appearance  of  Mr.  Justice  Warner,  etc.,  etc." ;  and  again 
at  the  next  meeting  the  "honorable  court"  was  censured  for  keep- 
ing the  Club  waiting. 

In  1872,  appear  the  names  of  William  Caleb  Loring  (now 
Judge  of  the  Massachusetts  Supreme  Court)  ;  Charles  J.  Bona- 
parte, and  Yoshikatsu  Enouye.  It  appears  that  Mr.  Justice  Lor- 
ing won  his  first  case  in  an  action  of  horse  warranty  against  Philip 
S.  Stone,  the  court  consisting  of  Nathan  Cutler,  C.  J.,  and  Frank- 
lin G.  Fessenden,  Roland  C.  Lincoln,  and  William  W.  Vaughan, 

J.J. 

The  Club,  in  1873,  nacl  a  most  precise  clerk  in  the  person  of 
George  A.  Goddard,  who  carefully  wrote  out  a  full  statement  of 
the  facts  of  each  case  argued;  and  the  cases  appear  to  have  all 
been  of  practical  import.  In  October,  1873,  the  time  for  the  meet- 
ing of  the  Club  was  changed  from  2  in  the  afternoon  to  7.30  in 
the  evening.  By  December,  1873,  it  had  apparently  been  found 
difficult  to  get  men  to  serve  as  counsel.  Accordingly  a  vote  was 


326  HARVARD  LAW  SCHOOL. 

passed  that  any  member  appointed  as  counsel  must  serve  or  pro- 
vide a  substitute,  the  penalty  for  neglecting  to  do  so  being  resig- 
nation from  the  Club.  A  year  later,  this  penalty  was  changed  to 
a  fine  of  fifty  cents.  The  records  now  begin  to  be  very  scanty, 
and  the  resignations  so  frequent,  that  in  October,  1874,  it  was 
voted  to  give  preference  in  elections  to  first  year  men. 

It  is  apparent  that  the  other  Law  Clubs,  notably  the  Pow  Wow, 
were  coming  to  the  front ;  and  "a  comparison  of  a  list  of  its  mem- 
bers with  a  list  of  the  members  of  the  Pow  Wow  might  show 
that  the  former  club  was  killed  by  the  superior  prestige  of  the 
latter  which  enabled  the  latter  Club  to  draw  off  the  famous  mem- 
bers.^ i) 

In  December,  it  was  voted  to  hold  meetings  in  the  private 
room  of  members.  Nov.  15,  1875,  the  Constitution  was  thor- 
oughly revised  with  the  following  praiseworthy  preamble  : 

Wishing  to  gain  a  more  thorough  knowledge  of  law,  and 
greater  readiness  in  the  use  of  such  knowledge,  we  hereby  form 
ourselves  into  a  club. 

The  Club  was  split  up  into  two  Courts,  a  Supreme  and  a  Su- 
perior— the  former  to  consist  of  eight  members  taken  from 
second  year  men,  the  latter  of  eight  first  year  men.  Members 
of  the  Supreme  Court  were  to  preside  in  turn  over  the  Superior 
Court  and  to  give  out  the  cases  for  argument.  The  Supreme 
Court  also  was  to  decide  all  cases  brought  before  it  on  appeal. 
The  members  of  the  Superior  Court  who  were  not  acting  as  coun- 
sel were  to  form  the  puisne  judges  at  each  sitting  of  that  court; 
and  to  deliver  their  opinions  seriatim  each  one  acting  in  turn  as 
senior  puisne,  whose  duty  it  was  to  deliver  the  first  opinion  and 
to  enter  a  report  of  the  case  on  the  records.  The  presiding  Su- 
preme Court  judge  was  to  deliver  the  last  opinion  and  if  the  court 
was  divided,  his  opinion  was  to  decide  the  case.  Pleadings  and 
briefs  were  to  be  handed  to  the  Chief  Justice  three  days  before 
the  sitting;  and  each  counsel  was  allowed  forty  minutes  for 
argument.  Pleadings,  except  that  of  the  general  issue  were  to  be 
according  to  the  usage  of  the  English  courts,  prior  to  the  Rules  of 
4  William  IV.  Vacancies  in  each  court  were  to  be  filled  by  unani- 
mous vote  of  the  court.  The  retiring  Supreme  Court  was  to 
elect  three  members  of  the  next  Supreme  Court  which  three  were 


(i)     Letter  of  Henry  P.  Starbuck  to  the  author. 


LAW   CLUBS.  327 

to  elect  the  remainder  of  the  court  and  also  the  first  three  of  the 
Superior  Court.  Meetings  of  the  Superior  Court  were  to  be  held 
on  Monday  evenings  at  eight  o'clock.  Absence  at  two  meetings 
was  to  sever  a  member's  connection  with  the  Club. 

The  first  case  argued  under  this  new  system  occupied  from 
eight  o'clock  to  half  past  eleven  in  the  evening.  On  the  third 
case,  the  plaintiff  was  given  judgment  by  default  owing  to  the 
neglect  of  the  defendant's  counsel,  H.  G.  Webster,  to  file  his 
pleadings  and  brief  in  time.  On  his  motion  to  remove  the  default 
because  "of  the  previous  loose  custom  of  the  Club  in  this  respect 
and  his  want  of  knowledge  of  the  provisions  of  the  Constitution," 
John  S.  Patton,  C.  J.,  delivered  the  opinion  of  the  Court,  over- 
ruling the  motion  because  of  the  bad  precedent  to  be  set  by  grant- 
ing it.  In  January,  1876,  occurred  a  case  which  was  hotly  argued 
until  midnight  by  John  A.  Wyckoff  and  W.  E.  Wilmer,  Horace  E. 
Deming  as  Chief  Justice  delivered  an  elaborate  opinion. 

The  last  case  argued  in  the  Marshall  Club  of  which  any  record 
exists,  was  Sharpe  v.  New  Bedford  R.  R.  Co.  on  April  25,  1876, 
Frederick  P.  Fish  for  the  plaintiff,  James  R.  Carey  for  the  de- 
fendant, in  which  Fish  lost, — an  elaborate  opinion  given  by 
Horace  E.  Deming,  C.  J.,  tracing  the  history  of  the  fellow  servant 
doctrine. 

The  record  states  that  the  Court  rose  at  12  130  A.  M.  Whether 
after  this  late  (or  early)  rising,  it  ever  sat  again,  no  record 
is  extant  to  tell. 

OTHER    LAW    CLUBS. 

Although  somewhat  out  of  chronological  order,  it  may  be  of 
interest  to  describe  at  this  point  the  law  clubs  of  later  days. 

In  the  College  Catalogue  for  1873-74,  in  the  description  of  the 
Law  School,  it  is  said : 

Nearly  every  member  of  the  School  belongs  to  one  or  more  law 
clubs.  These  clubs,  numbering  twelve  and  upwards  in  all,  generally 
consist  of  about  10  or  12  members  each,  and  meet  once  a  week  for 
argument  and  decision  of  moot  cases. 

The  cases  are  invariably  pleaded  by  the  counsel  in  the  first  in- 
stance, and  the  questions  argued  and  decided  on  such  as  are 
raised  by  the  pleading. 

The  students  are  resident  in  Cambridge,  and  the  work  of  the 
School  constitutes  their  chief  occupation  and  interest.  Questions 
relating  to  their  common  pursuit  are  constantly  the  subject  of 


328  HARVARD  LAW  SCHOOL. 

conversation  and  discussion  among  the  members  of  the  School ; 
and  the  stimulating  and  invigorating  effect  of  this  constant  social 
intercourse  among  a  large  body  of  educated  and  highly  trained 
young  men  cannot  be  over-estimated. 

These  clubs,  gradually  grew  in  numbers  to  such  an  extent  and 
the  interest  taken  and  the  amount  of  work  expended  in  prepara- 
tion of  the  club  court  cases  by  the  student  increased  so  largely 
that  they  detracted  from  the  value  of  the  Moot  Courts.  The 
students  became  more  and  more  unwilling  to  prepare  their  Moot 
Court  cases  thoroughly,  and  attendance  fell  off. 

Professor  Gray  said  in  a  discussion  before  the  American  Bar 
Association  in  1892 : 

The  Moot  Courts  are  not  very  successful.  I  wish  they  were 
more  so.  It  is  well  for  the  students  to  argue  in  a  somewhat  more 
formal  manner  as  they  will  before  the  faculty,  rather  than  to  con- 
fine themselves  to  their  clubs.  Moot  Courts  used  to  be  compul- 
sory, but  there  were  so  many  excuses  that  we  have  given  up  the 
compulsion.  They  are  rather  dwindling.  We  have  experimented 
with  practice  courts.  Last  year  we  tried  Mrs.  Maybrick  with  a 
jury  from  the  undergraduates  and  it  was  quite  successful.  But  to 
make  that  kind  of  thing  a  success  is  pretty  hard  work  for  the 
Professor  who  has  to  get  up  the  evidence  on  both  sides. 

In  1879,  the  students  had  lost  interest  so  largely  that  the  Moot 
Courts  were  suspended.  After  that  year,  they  were  resumed  but 
with  little  vigor.  Finally  the  Faculty  became  convinced  that  they 
had  ceased  to  be  of  importance  in  the  work  of  the  School,  and  in 
1897  they  were  finally  discontinued.  The  Law  Clubs  became, 
however,  correspondingly  more  vigorous ;  and  Professor  Gray 
said  in  1892: 

So  far  as  the  clubs  go  they  have  been  a  great  success.  I  think 
there  is  nothing  connected  with  the  Law  School  that  has  been 
more  distinctly  an  improvement  than  this  matter  of  student  clubs 
to  argue  cases.  When  I  was  in  the  Law  School  or  when  my 
friend  Judge  (S.  E.)  Baldwin  was  there,  there  were  clubs,  as  he 
says,  but  each  club  was  carried  on  by  practically  three  persons, 
one  student  on  each  side  to  argue  and  one  student  to  sit  as  judge. 
And  the  rest  of  the  students  took  very  little  interest  in  it. 

The  oldest  surviving,  and  in  many  ways  the  most  prominent, 
law  club  has  been  the  Pow  Wow.  It  was  founded  in  1870,  the 
original  members  being  Leverett  Tuckerman,  Horace  Binney  Sar- 
gent, Frederic  Dodge,  James  H.  Bowditch,  Augustus  P.  Loring, 


LAW  CLUBS.  329 

George  H.  Adams,  Russell  Gray,  Brooks  Adams,  and  Artemas 
H.  Holmes.  Austen  G.  Fox  and  James  Barr  Ames  were  chosen 
later  in  the  year  to  fill  the  vacancies  due  to  the  departure  of 
Holmes  and  Dodge. (i) 

The  Club  met  in  the  rooms  of  Brooks  Adams  in  Wadsworth 
House.  The  cases  were  argued  at  first  by  one  counsel  on  each 
side  before  six  puisne  judges  and  one  presiding  judge.  Later 
practicing  lawyers  were  frequently  asked  to  preside,  Oliver  Wen- 
dell Holmes,  Jr.,  and  Nicholas  St.  John  Green  among  others.(i) 

On  April  4,  1896,  this  Club  celebrated  its  25th  Anniversary  by  a 
dinner  at  the  Hotel  Vendome  in  Boston,  at  which  Professor  James 
Barr  Ames  presided;  and  Austen  G.  Fox  (L.  S.  187071),  Her- 
bert C.  Lakin  (L.  S.  1894-96,  1897-98),  Joseph  B.  Warner  (L.  S. 
1871-74),  William  F.  Corliss  (L.  S.  1894-97),  A.  Lawrence  Low- 
ell (L.  S.  1877-79),  Sherman  Hoar  (L.  S.  1882-84),  Judge 
Franklin  G.  Fessenden  (L.  S.  1870-73),  Charles  E.  Grinnell  (L. 
S.  1874-76),  Henry  L.  Stimson  (L.  S.  1888-90),  William  H. 
Rand,  Jr.  (L.  S.  1888-91),  Gordon  K.  Bell  (L.  S.  1893-96)  were 
the  speakers.  The  Committee  of  Arrangements  were  Henry 
Ware  (L.  S.  1893-96),  William  F.  Corliss  (L.  S.  1894-97), 
Robert  G.  Dodge  (L.  S.  1894-97),  Roland  Gray  (L.  S.  1895-98), 
W.  Rodman  Peabody  (L.  S.  1895-98). 

In  1901,  the  3<Dth  Anniversary  of  the  Club  was  celebrated  by  a 
dinner  at  which  it  was  stated  that  the  number  of  members  living 
was  308,  deceased  31 — total  339. 

On  April  7,  1906,  the  35th  Anniversary  of  the  Club  was  cele- 
brated by  a  dinner  at  the  New  Algonquin  Club  in  Boston  at  which 
Augustus  N.  Hand  (L.  S.  1891-94)  was  Toastmaster.  The  speak- 
ers were  Prof.  James  Barr  Ames  (L.  S.  1870-73),  Judge  William 
C.  Loring  (L.  S.  1872-75),  Camillus  G.  Kidder  (L.  S.  1873-75), 
Samuel  B.  Clarke  (L.  S.  1874-76),  Judge  Francis  G.  Lowell  (L. 
S.  1877-79).  Francis  J.  Swayze  (L.  S.  1880-81),  Elihu  Root,  Jr. 
(L.  S.  1904-06),  Arthur  A.  Ballantine  (L.  S.  1905-07).  The 
Committee  of  Arrangements  were  Gilbert  Bettman,  Grenville 
Clark  and  Earnest  Everett  Smith. 

On  the  menu  card,  it  was  stated  that  the  number  of  members 
living  was  348,  deceased  33, — total  381. 


(i)  See  letter  of  Russell  Gray  of  March  13,  1894,  in  possession  of  Prof. 
J.  B.  Ames. 

(i)  See  letter  of  Artemas  H.  Holmes  of  New  York,  partner  of  George 
H.  Adams,  dated  March  -,  1894,  in  possession  of  Prof.  J.  B.  Ames. 


330  HARVARD  LAW  SCHOOL. 

Within  six  years  after  the  foundation  of  the  Pow  Wow,  a 
number  of  similar  clubs  had  sprung  up.  Most  of  them  followed 
the  general  scheme  of  the  Marshall  Club,  before  described,  hav- 
ing a  Superior  Court  of  eight  first  year  men,  presided  over  by  a 
Chief  Justice,  who  was  generally  a  member  of  the  Supreme  Court 
which  consisted  of  eight  second  year  men. 

The  Pow  Wow  had  a  third  Court  termed  the  "Chamber",  to 
which  belonged  all  its  graduates.  Later,  after  the  adoption  of 
the  three  year  course  in  the  Law  School,  some  of  the  more  prom- 
inent law  clubs  instituted  third  Courts,  known  as  the  Courts  of 
Appeal  and  consisting  of  third  year  men. 

In  1876-77,  the  leading  law  clubs  were  the  Pow  Wow,  the 
Ames  Pleading  Club  and  the  Washburn  Club,  each  of  which  had 
two  Courts ;  the  Bradley  Pleading  Club,  the  Dane  Law  Club,  the 
Tory  Club,  the  Common  Law  Club,  the  Lotus  Club,  each  of  which 
consisted  only  of  men  of  one  class. 

In  1880,  the  prominent  club  named  the  Thayer  Club  was 
founded  by  members  of  the  First  and  Second  Year  classes.  Its 
history  is  thus  given  by  its  present  clerk,  Walter  H.  Pollak : 

Since  that  date,  it  has  had  a  continuous  career  without  change 
of  name  or  form,  surpassed  in  length  by  only  one  of  the  other 
law  clubs.  The  organization  was  honored  not  merely  by  the  name 
of  Professor  Thayer,  but  by  his  friendly  interest  throughout  the 
remainder  of  his  generation-long  association  with  the  school. 
Each  newly  elected  member  of  the  Club  is  to-day  presented  with 
a  copy  of  the  well-known  etching  of  Professor  Thayer  by  Mr. 
Sidney  Smith  of  Boston. 

The  two  hundred  and  seventy-five  graduate  and  undergraduate 
members  of  the  Thayer  Club  include  representatives  of  sub- 
stantially all  the  leading  colleges  and  Universities  of  the  United 
States  and  Great  Britain,  and  have  their  homes  in  most  of  the 
American  States  and  some  of  the  countries  of  Europe  and  Asia. 
From  the  first  the  number  of  members  elected  to  each  court  has 
been  eight ;  for  special  reasons  some  courts  have  raised  the  limit 
to  ten  or  even  twelve. 

The  first  regular  meeting  is  generally  held  about  the  first  of 
November,  and  it  is  always  sought  to  bring  the  discussion  and 
decision  of  cases  to  a  close  before  the  first  of  March.  The  meet- 
ing place  for  the  last  few  years  has  been,  through  the  courtesy  of 
the  editors,  the  sanctum  of  the  Harvard  Advocate.  Each  mem- 
ber of  the  First  Year  Court  is  given  three  cases  in  the  year ;  care- 
ful provision  is  made  to  prevent  any  two  members  from  being 
twice  opposed  to  one  another.  The  average  interval  between  the 
cases  of  any  member  is  about  a  month,  and  a  certain  effort  is 


Choate  Chapter— Phi  Delta  Phi 


LAW   CLUBS.  331 

made  to  secure  for  everyone  some  practice  as  counsel,  in  different 
arguments,  for  the  prosecution  and  for  the  defense.  Cases  are 
assigned  three  weeks,  and  briefs  for  one  week,  in  advance  of  the 
trial.  The  selection  of  cases  for  argument  falls  to  the  Chief  Jus- 
tice, who  is  regularly  a  Professor  in  the  School  or  a  member  of 
the  Second  or  Third  Year  Courts ;  more  rarely  some  member  of 
the  legal  profession  not  presently  connected  with  the  School 
officiates.  The  decision  is  represented  by  the  majority  vote  of 
the  Court,  which  consists  of  the  Chief  Justice  and  the  six  mem- 
bers of  the  First  Year  not  involved  as  counsel  in  the  case  at  bar. 
In  the  first  case  of  each  year  one  Second  Year  student  on  each 
side  acts  as  senior  counsel ;  in  all  the  succeeding  cases  the  argu- 
ment is  conducted  by  First  Year  men  alone.  The  cases  assigned, 
the  briefs  of  prosecution  and  defense,  and  statements  of  the  de- 
cisions rendered,  are  collected,  bound,  and  deposited  in  the 
library  of  the  Law  School. 

In  the  spring  of  the  year  under  the  auspices  of  the  Thayer 
Club  Association,  the  graduate  organization,  and  under  the  presi- 
dency of  the  Clcricus  Antiqnissiinns,  (Mr.  A.  P.  Cushing,  the 
clerk  of  the  original  Supreme  Court)  is  held  a  dinner  for  all 
Thayer  men.  Those  present  are  by  established  custom  expected 
to  bring  the  distinctive  steins  of  their  year ;  and  this  occasion 
affords  an  opportunity  for  the  receipt  of  notices  from  Thayer 
men  everywhere  of  their  address  and  such  achievements  as  find 
a  place  in  the  catalogue  published  every  few  years  by  the  Thayer 
Club  Association. 

There  are  at  the  present  date  (1908)  about  fifty  Law  Clubs,  of 
which  the  more  prominent  are  the  Ames-Gray,  Williston,  Kent 
( founded  in  1893),  Austin,  Choate,  George  Gray,  Harlan,  English 
6  (founded  in  1895),  English  30  (now  the  Bryce),  Holmes,  Ham- 
ilton, Langdell,  Moody,  Parsons,  Smith,  Story,  Westengard,  Wit- 
enagemot  and  Wyman — all  of  them  organized  on  much  the  same 
plan  as  the  Marshall  Club  of  earlier  days. 

Professor  Dicey  in  his  Teaching  of  English  Law  at  Harvard (i) 
laid  great  stress  on  the  value  of  the  training  in  argument  obtained 
in  the  Law  Clubs,  but,  he  said,  "the  practical  advantages  obtained 
from  the  Law  Clubs  and  Moot  Courts  sink  into  nothing  compared 
with  the  benefit  which  these  institutions  confer  upon  students  by 
kindling  ardent  interest  in  legal  problems." 

Besides  these  clubs,  there  is  a  chapter  of  the  Phi  Delta  Phi 
Society  organized  in  the  School  for  more  largely  social  purposes. 

(i)     See  Hotvard  Law  Review,  Vol.  XIII  (Jan.,  1900). 


CHAPTER  XXXIX. 
THE  LAW   LIBRARY    1845-1869. 

The  total  cost  of  the  Law  Library  to  August  31.  1846,  as 
stated  by  the  College  Treasurer,  had  been  $32,493.87. 

At  that  date,  the  Library  consisted  of  about  11,000  volumes, 
very  complete  according  to  the  standard  of  the  day,  and  far  more 
ample  than  any  other  in  the  country. (i) 


(i)  An  adverse  criticism,  however,  is  to  be  found  in  the  American 
Jurist  October,  1841,  severely  commenting  on  alleged  extravagant  state- 
ments and  claims  made  as  to  the  Library,  by  W.  R.  Woodward,  in  the 
preface  to  the  second  edition  of  the  Library  Catalogue,  in  1841. 

"The  publication  of  this  catalogue  enables  us  to  judge,  in  some  sort,  of 
those  means  of  obtaining  a  law  education,  in  the  Law  School  at  Cam 
bridge,  which  .are  independent  of  the  personal  labors  of  the  distinguished 
Professors  of  that  institution.  In  the  departments  of  English  and  Ameri- 
can law,  little  perhaps  is  wanting ;  but,  in  some  departments  of  general 
jurisprudence,  much  is  to  be  desired.  In  the  department  of  Roman  law. 
for  example,  we  find  none  of  the  modern  works,  with  the  exception  of  the 
unfinished  English  translation  of  Savigny's  history,  by  Cathcart,  and  a 
French  translation  of  the  same  work,  and  the  newly  discovered  fragments 
of  Gaius ;  and,  yet,  in  no  department  of  jurisprudence,  has  the  present  cen- 
tury produced  more  or  more  valuable  work.  We  venture  to  say,  that,  with 
the  exception  of  the  corpus  juris  itself,  there  is  hardly  a  single  book  in  the 
Law  Library  of  Harvard  College,  which  a  modern  Professor  of  Roman  Law 
would  think  of  putting  into  the  hands  of  his  pupils.  We  desire  not  to  be 
misunderstood.  The  works  on  Roman  Law,  in  this  Library,  are  undoubtedly 
valuable,  and  well  deserve  a  place  there ;  and  the  same  may  be  said,  and 
for  much  the  same  reason,  of  Bracton,  Glanvil,  and  the  year  books ;  but 
the  former  are  as  little  suited  to  the  modern  student  of  the  Roman  law, 
as  are  the  latter  to  the  student  of  the  Common  Law.  ...  In  modern 
works  on  the  Roman  Law,  the  library  of  the  Boston  Atheneum  is  infinitely 
richer,  though  that,  we  believe,  has  received  no  accessions  in  this  depart- 
ment, within  the  last  fifteen  years.  In  Criminal  Law,  and  prison  discipline, 
the  works  on  which,  produced  in  continental  Europe  within  the  present 
century,  would,  of  themselves,  constitute  a  large  collection,  the  Library  is 
almost  entirely  deficient ;  and,  of  all  modern  works  of  public  law,  and  the 
philosophy  of  law,  we  find  few  or  no  traces.  Of  all  the  countries  of  Eu- 
rope, or,  indeed  of  the  world,  Germany  now  produces  the  greatest  number 
of  works  on  jurisprudence  and  its  kindred  topics,  which  are  almost  all  of 
them  written  in  German ;  and,  yet,  astonishing  as  it  may  seem,  the  Law  Li- 
brary of  Harvard  University, — among  the  first,  "perhaps  in  any  country  as 
a  collection  of  general  and  municipal  jurisprudence," — containing  a  nearly 
complete  collection  "of  European  continental  law,"  from  the  earliest  times 
down  to  the  eighteenth  century," — and  furnished  with  the  "most  valuable" 
among  the  latest  "continental  law  books  and  legal  reviews," — as  Mr.  Wood- 
ward would  have  us  believe, — does  not,  so  far  as  we  have  been  able  to 
discover  from  the  catalogue  before  us,  contain  a  single  work  in  the  Ger- 
man language! 

In  what  we  have  said,  it  has  been  far,  very  far,  from  our  intention,  to 


THE  LIBRARY   1845-1869.  333 

After  Judge  Story's  death,  the  expenditures  for  the  Library 
rapidly  fell,  and  its  size  increased  very  slowly,  and  almost  entirely 
in  the  direction  of  text  books  for  use  by  the  students. 

This  was  due,  partly  to  the  fact  of  its  completeness,  partly  to 
lessened  interest  taken  by  the  Professors,  but  chiefly  to  the  large 
yearly  deficit  in  the  Law  School  account  from  1856  to  1866,  to  the 
loss  in  attendance  of  students  during  the  war,  and  to  the 
decrease  in  the  Bussey  income  after  1865.  The  strictures  there- 
fore, made  in  after  years  on  the  Professors  of  this  period  for  the 
low  state  into  which  the  Library  was  allowed  to  drop,  were,  in 
reality,  hardly  justifiable. 

The  number  of  books  in  the  Library  was  stated  by  the  various 
Visiting  Law  School  Committees,  in  their  Reports  to  the  Over- 
seers, and  by  the  Librarians,  as  follows :  Jan.  22,  1846,  10,000 ; 
by  the  Librarian,  Dec.  24,  1855,  15,300,  of  which  9,500  were  in  the 
general  library,  2,300  text  books  for  students,  3,500  deposited  in 
Gore  Hall,  1,000  belonging  to  the  Commonwealth  of  Massachu- 
setts; in  1858,  15,000,  of  which  8,030  were  in  the  general  library, 
4,000-5,000  were  text  books,  700  belonging  to  the  Common- 
wealth ;  in  1861,  8,851  in  the  general  library;  in  1862,  9,334  in  the 
general  library  and  3,349  text  books;  July  10,  1863,  by  the 
Librarian,  9,502  in  the  general  library  and  3,123  text  books,  406 
superseded  text  books — total  13,038;  Aug.  i,  1864,  9,594  in  the 
general  library  and  3,159  text  books,  311  superseded  text 
books,  (i) 

The  amounts  spent  for  books  were  as  follows : 

1845-46 $3,252.05  1857-58 $    593.00 

1846-47 1,423-52  1858-59 323-06 

1847-48 1,085.54  1859-60 1,330-95 

1848-49 599-77  1860-61 929.67 

1849-50 684.13  1861-62 1,542.31 

undervalue  the  Law  Library  of  Harvard  University,  or  to  find  any  fault 
with  the  distinguished  gentlemen,  who  have  charge  of  the  School  with 
which  it  is  connected,  for  the  deficiencies  we  have  pointed  out.  .  .  ." 

(i)  The  large  number  of  text  books  for  the  use  of  students  reflects 
the  increase  in  the  size  of  the  classes  and  in  the  number  of  text  books 
studied;  thus  in  the  Report  of  Jan.  13,  1852,  it  is  stated  that,  of  274 
books  added  since  the  last  Report,  105  were  text  books;  and  in  the 
Report  of  Dec.  24,  1855,  it  appeared  that  since  the  last  Report  147  copies 
of  Parsons  on  Contracts  had  been  added  to  the  text  book  collection. 

In  1857  and  1858,  the  books  and  statutes  deposited  by  the  Common- 
wealth of  Massachusetts  under  the  Resolve  of  the  Legislature  of  March 
31,  1836,  were  called  for  and  retaken  by  the  State  authorities. 


334  HARVARD  LAW  SCHOOL. 

1850-51 947-87  1862-63 904-42 

1851-52 779-6i  1863-64 I.I57-46 

1852-53 800.87  1864-65 355-32 

1853-54 1,234.83  1865-66 757-71 

1854-55 1,393-32  1866-67 796.39 

1855-56 75o.8i  1867-68 74I-32 

1856-57 7J2.56  1868-69 1,722.95 

There  were  few  gifts  of  importance  made  to  the  Library 
during  this  period.  Aug.  28,  1847,  Professor  Greenleaf  reported 
to  President  Everett  a  present  of  about  50  volumes  from 
Alexander  Vattemare.  ( I )  In  1848,  an  interesting  gift  was 
made  to  the  Library  by  the  King  of  the  Hawaiian  Islands 
through  W.  L.  Lee  (then  Chief  Justice  of  the  Islands,  and  a 
member  of  the  School  in  1843-44),  reported  to  President  Everett 
by  Professor  Greenleaf,  March  22,  1848,  as  follows (2)  : 

The  Constitution  and  Old  Laws  of  the  Hawaiian  Islands  (in 
English).  The  Statutes  of  the  same,  Vol  I,  (in  English).  Report 
of  the  case  between  Ladd  &  Co.  and  the  King  &  Gov't.  of  those 
Islands  (in  English). 

If  you  think  it  proper  to  make  any  special  acknowledgment  of 
these  donations,  will  you  have  the  goodness  either  to  direct  the 
mode  or  prepare  the  form. 

The  Library  continued  in  the  charge  of  students  as  Librarians, 
the  choice  being  made  of  those  men  of  high  rank  and  other 
qualifications  who  needed  pecuniary  assistance,  and  the  following 
serving  in  the  position:  Eben  F.  Stone  (1846),  Mellen  Cham- 
berlain (1847-48),  William  A.  Rich  (1849-50),  Arthur  W. 
Machen  (1850-52),  Christopher  C.  Langdell  (1852-54),  William 
E.  Chandler  (1854-56),  George  M.  Hobbs  (1856-57),  Charles  P. 
Chandler  (1857-58),  Lucius  M.  Child  (1858-59),  Francis  O. 
French  (1859-60),  James  W.  Stephenson  (1860-62),  Alonzo  B. 
Wentworth  (1863-64),  Edward  Auten  (1864-68),  James  A.  L. 
Whittier  (1868-70). 

Beginning  in  1846,  the  Librarian  was  paid  $100  a  term,  by  vote 


(1)  See  letter  in  Harv.  Coll.  Papers,  2nd  Series,  Vol.  XV. 

(2)  See  Harv.  Coll.  Papers,  2nd  Series,  Vol.  XV. 

The  Corporation  voted  (See  Records),  March  25,  1848:  "That  the 
thanks  of  the  President  and  Fellows  of  Harvard  College  be  returned 
to  His  Majesty,  the  King  of  the  Hawaiian  Islands,  for  the  donation 
aforesaid,  and  that  a  letter  of  thanks  be  addressed  by  the  President  to 
Chief  Justice  Lee,  transmitting  a  certified  copy  of  this  record,  and  re- 
questing him  to  lay  the  same  before  the  King." 


THE  LIBRARY  1845-1869.  335 

of  the  Corporation  Aug.  29,  1846,  in  addition  to  the  payment 
made  to  his  predecessor  of  tuition  fees,  room  rent,  etc.  In  1847- 
48,  Mellen  Chamberlain  was  given  an  extra  grant  of  $251.35 ;  and 
in  1848-49,  of  $300  for  special  services. (i) 

In  1850-51  the  salary  of  the  Librarian  was  increased  to  $200; 
in  1860-61,  to  $375.  In  1865-66,  it  was  reduced  to  $300;  in  1866- 
67,  to  $200.  In  1868-69,  tne  Librarian  received  $320  and  an 
additional  grant  of  $125. 

In  1846,  a  new  edition  of  the  Law  Library  Catalogue  was 
published,  of  354  pages — the  result,  probably,  of  the  following 
Report  from  the  Law  School  Visiting  Committee  to  the  Over- 
seers, January,  1847,  noting  that  "the  want  of  a  complete  cata- 
logue is  felt,  though  application  of  it  to  annual  examinations 
must  be  attended  with  some  difficulty  as  so  many  of  the  volumes 
are  in  requisition  for  the  students.  But  being  printed,  it  would 
become  a  guide  to  those  who  might  be  desirous  of  increasing  by 
donation  the  already  admirable  collection." 

The  prevailing  ideas  that  the  Law  Library  was  brought  into 
existence  later  under  the  Langdell  regime,  and  that  it  was  not 
of  much  account  prior  to  that  time,  are  readily  dispelled  by  the 
constant  enthusiastic  praise  of  the  Library  made  in  the  Annual 
Reports  to  the  Overseers  by  the  various  Visiting  Law  School 
Committees.  (2) 


( i )  See  letter  of  Professors  Parker  and  Parsons  to  the  Corporation, 
Dec.  29,  1848,  as  to  having  persuaded  Mr.  Chamberlain  to  remain  through 
the  present  term  for  $300  "to  promote  the  interest  of  the  School." — 
Harv.  Coll.  Papers,  2nd  Series,  Vol.  XVI. 

(2^  In  1846,  the  Committee  reported  that:  "The  Law  Library  is  not 
without  reason  judged  to  be  the  best  collection  of  law  authorities  in  our 
Union." 

In  1847,  it  reported :  "The  Library  is  in  excellent  order  and  preser- 
vation.'' and  that  "its  present  state  and  progressive  increase  gave  much 
pleasure  to  the  gentlemen  who  inspected,  assisted  as  they  were  by  Prof. 
Grcenleaf." 

Jan.  16,  1851,  it  reported :  "The  Library  is  in  excellent  order.  It  at- 
tracts as  it  highly  deserves  the  attention  of  not  private  individuals  alone 
but  public  bodies  also,  and  not  simply  that  of  our  own  patriotic  country- 
men, but  also  of  foreign  friends  to  the  progress  of  juridical,  civil  and 
political  knowledge.  Of  this,  the  donations  of  the  past  year,  as  many  of 
former  years  afford  the  proof." 

Jan.  22,  1852,  it  said  that  "the  Library  in  its  completeness  is  as  honor- 
able to  the  College  as  it  is  useful  to  the  students." 

In  1853,  it  said  that :  "The  Library  exhibited  a  condition  evincing  care 
and  diligent  use.  .  .  .  Considerable  difficulty  is  experienced  in  pro- 
curing the  reports  of  distant  States,  but  the  collection  in  different  de- 
partments have  on  the  whole,  been  well  sustained  as  regards  com- 
pleteness, and  are  seldom  behind  the  latest  publication." 

Xov.  20,   1854.  it  said  that  "it  is  believed  that  its  Library  is  more  af- 


336  HARVARD  LAW  SCHOOL. 

The  subject  of  the  loss  of  books,  however,  due  to  the  unre- 
stricted access  of  the  students  to  the  Library,  and  the  slight 
amount  of  time  which  the  student  Librarians  could  devote  to 
care  of  the  books,  was  a  matter  of  great  concern  to  the  Visiting 
Committees.  According  to  the  Report  of  1847,  the  missing  books 
numbered  45;  Jan.  20,  1848,  n  ;  Jan.  18,  1849,  6;  Jan.  1854,  18; 
Dec.  24,  1855,  197  from  the  general  library  and  89  text  books; 
in  1856,  the  Librarian  reported  46  missing.  In  1858,  the  sub  com- 
mittee of  the  Visiting  Library  Committee  reported  150  missing, 
''being  41  more  than  the  total  additions  during  the  year."(i)  In 
1861,  the  Law  Librarian  estimated  the  losses  at  100. 

In  the  years  1861  and  1862,  a  somewhat  acrimonious  contro- 
versy arose  between  the  Professors  of  the  School  and  the 
Visiting  Library  Committee,  regarding  the  losses  and  general 
condition  of  the  Library.  For  some  years,  the  Law  Library  had 
been  visited  by  two  committees — one,  a  sub-committee  of  the 
general  Committee  appointed  by  the  Overseers  to  Visit  the 
Library  of  the  University  and  which,  probably  wrongly,  supposed 
that  it  was  within  its  province  to  visit  the  Libraries  of  the  Pro- 


fluent  of  law  books  in  the  English  language  than  any  other  collection." 

In  January,  1854,  it  reported  the  Library  "in  good  condition,"  and 
that  the  sets  of  English  Chancery  reports  were  complete,  with  the  ex- 
ception of  about  one  year,  the  English  Common  Law  reports  were  entirely 
complete,  and  the  American  reports  were  complete  with  the  exceptions 
of  a  few  volumes  of  Indiana,  Texas,  Arkansas,  Louisiana,  Georgia,  Ala- 
bama, South  Carolina  and  Michigan  reports  (no  reports  at  all  from 
Wisconsin  having  yet  been  received).  It  deplored  the  absence  of  books 
however  at  periods  of  examination,  in  most  cases  due  to  negligence,  and 
it  stated :  "The  evil  is  one  for  which  a  remedy  should  be  sought,  and  an 
adequate  penalty  should  be  provided  for  the  impropriety  of  carrying  any 
book  from  the  room,  without  the  knowledge  of  the  Librarian,  and  a 
register  of  the  title  and  name  of  the  borrower  and  date  of  lean." 

Dec.  24,  1855,  it  reported  "little  regularity  in  the  management  of  the 
Dooks  and  a  general  want  of  neatness  and  method,"  and  it  suggested  the 
appointment  of  a  permanent  Librarian  in  place  of  "the  present  imperfect 
system."  (It  is  to  be  noticed  that  this  suggestion  was  not  carried  out 
until  fifteen  years  afterwards,  in  1870.) 

In  1856,  the  Librarian  reported  that  the  English  Law  and  Chancery 
reports  were  now  complete,  and  that  the  American  reports  were  com- 
plete, except  ten  volumes  from  South  Carolina,  Texas,  Louisiana,  Tennes- 
see and  Arkansas. 

(i)  Such  a  condition,  it  was  said,  disclosed  "a  biblio-furacity.  .  . 
deserving  of  special  punishment.  .  .  carelessness  not  to  be  dis- 
tinguished from  crime."  The  Law  Librarian  explained  the  situation  as 
arising  from  the  free  access  of  the  students  to  the  books  from  6  A.  M.  to 
9  P.  M. 

"This  accounts  for  the  opportunity,"  the  Committee  replied,  "but  the 
question  naturally  arises  whether  it  is  not  practicable  to  establish  a 
standard  of  honor  among  the  members  of  the  School,  which  would  afford 
a  greater  security  than  bolts  and  bars." 


THE  LIBRARY  1845-1869.  337 

fessional  Schools — the  other,  the  general  Committee  appointed 
by  the  Overseers  to  visit  the  Law  School. 

The  report  of  the  sub-committee  of  the  Library  Visiting  Com- 
mittee of  July,  1861,  may  be  summarized  as  follows. 

An  examination  of  the  books  in  the  Library  in  1858  had 
disclosed  the  fact  that  in  the  past  twelve  years  the  total  losses 
had  amounted  to  870  volumes ;  that  since  1852,  owing  to  frequent 
change  of  Librarians,  there  had  been  few  examinations  made; 
that  the  Law  Faculty  had  instructed  the  Librarian.  Mr.  J.  W. 
Stephenson,  in  July,  to  make  a  thorough  examination ;  and  that 
he  reported  that  the  whole  number  of  books  in  the  general  Law 
Library  to  be  8,851;  that  the  College  Catalogue  stated  the 
number  as  15,000;  but  this  included  text  books  for  students 
which  were  in  special  charge  of  the  Librarian  in  a  separate  room ; 
that  another  portion  of  the  Library,  400  or  500  duplicate  reports, 
was  in  Professor  Parsons'  room ;  that  there  was  an  entire  want 
of  shelf  lists,  shelf  marks  and  alcove  designations,  and  that  the 
Librarian  had  been  obliged  to  take  down  from  the  shelf  each 
book  separately  and  having  found  its  title  in  the  catalogue  pre- 
pared by  him,  to  check  it  up.  Books  were  often  kept  by  students, 
two  or  three  terms  "and  when  turned  in  are  found  enriched  by 
marginal  annotations."  175  volumes  were  found  missing,  of  which 
6  were  reports,  and  100  had  been  lost  in  the  last  term. 

Your  Committee  looks  upon  this  state  of  things  as  truly 
alarming ;  .  .  .  security  should  be  the  first  law  of  such  a  col- 
lection. .  .  .  The  Librarian  is  not  a  librarian  in  the  common 
acceptation  of  the  term — a  keeper  of  books — for  he  exercises  no 
special  supervision.  .  .  .  He  occupies  his  own  room  and  has 
no  immediate  connection  with  the  general  Library  and  is  not 
expected  to  be  in  attendance  at  any  stated  time  during  the  day. 
From  TO  to  n  A.  M.  his  room  is  open  for  the  delivery  of  text 
books ;  at  other  hours  his  time  is  his  own,  but  he  is  expected  to 
enter  up  new  books  on  the  list  of  accessions  and  to  perform  some 
clerical  duties  for  the  Law  Faculty.  The  janitor  is  the  executive 
officer  of  the  Law  Library  as  well  as  the  factotum  of  the  Law 
School. 

When  the  janitor  is  not  at  his  meals,  has  no  fires  to  build,  no 
errands  to  run  for  the  Professors,  no  jobbing  to  do,  he  is  at  his 
post  of  duty  as  custodian  of  the  Law  Library.  It  seems  harly  just 
that  a  person  performing  such  multifarious  and  responsible  duties 
should  have  so  humble  a  title.  When  the  janitor  is  not  present, 
and  that  is  for  many  and  irregular  hours  during  the  day,  no 
person  has  charge  of  the  Library.  There  is  nothing  except  moral 

22 


338  HARVARD  LAW  SCHOOL. 

principle  on  the  part  of  the  tempted  to  prevent  anyone   from 
carrying  away  whatever  he  chooses. 

The  manner  in  which  the  rules  of  the  Library  are  enforced  is 
not  adapted  to  cultivate  in  the  students  a  high  standard  of  moral 
principle  in  the  matter  of  borrowing  books.  The  rules  make 
it  the  duty  of  the  janitor  to  notice  when  he  replaces  books  upon 
the  shelves  any  missing  volumes  and  to  report  the  same  to  the 
Law  Faculty  "without  exception  and  without  delay''  .... 
No  such  reports  are  made. 

The  Committee  then  pointed  out  that  while  the  rules  require 
that  no  books  should  be  taken  out  without  leave  and  record  "a 
few  conscientious  individuals  conform  to  this  rule;  but  the  Libra- 
ian  said  the  more  felicitous  mode  is  to  take  the  books  without 
troubling  the  Law  Faculty  or  the  Librarian." 

The  Committee  was  strongly  in  favor  of  reducing  the  freedom 
of  access  to  the  books  by  the  students ;  they  suggested  that  the 
Library  never  be  left  without  an  attendant,  that  shelf  lists  be 
made,  that  the  text  books  be  called  in  once  each  year,  and  that  the 
duties  of  the  Librarian  be  increased  and  those  of  the  janitor 
lessened. 

The  Law  Faculty  took  considerable  umbrage  at  the  tone  of  this 
Report,  and  though  adopting  shelf  lists,  declined  to  restrict  the 
free  access  to  the  books. (i)  The  general  Law  School  Visiting 
Committee  in  1862  approved  the  Law  Faculty's  position  and,  the 
next  year  1863,  questioned  the  jurisdiction  of  the  sub-committee 
of  the  Library  Visiting  Committee.  For  three  years  this  triangu- 
lar contest  raged.  Finally,  however,  in  1864,  the  number  of 
missing  books  having  fallen  to  9,  the  whole  subject  \vas 
dropped. 

In  this  year,  the  number  of  books  in  the  Law  Library  was 
reported  as  13,064  of  which  3,159  were  text  books  used  by  the 
students  and  311  superseded  text  books.  In  1869,  the  number 
was  about  15,000  of  which  at  least  4,000  were  students'  text 
books. 


(i)  See  Report  of  Law  Faculty  to  the  Board  of  Overseers,  Dec.  31, 
1862,  referring  to  the  "somewhat  rhetorical  and  extravagant  remarks  of 
the  librarian."  They  stated  that  they  did  not  believe  that  the  "idea  of 
having  a  watch  of  attendants  for  detective  purposes  can  be  had  without 
changing  materially  the  mode  of  use  or  by  an  annual  increase  of  expense 
equal  to  the  probable  hazard  of  loss.  .  .  .  Such  watch  and  ward,  by 
becoming  an  annoyance  would  probably  increase  the  hazard  of  loss  or 
materially  affect  the  attendance  upon  the  School,  perhaps  both.  From  the 
earliest  foundation  of  the  School,  students  have  been  admitted  to  a  free  use 
of  the  books,  not  merely  for  the  preparation  of  Moot  Court 


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THE  LIBRARY  1845-1869.  339 

LAW   SCHOOL  REGULATIONS. 

Prior  to  1846,  the  regulations  adopted  by  the  Law  Faculty 
regarding  the  administration  of  the  School  had  been  few  in 
number,  and  simple  in  character.  No  copy  so  far  as  is  known  is 
extant  in  the  official  records. 

On  June  12,  1846,  the  Corporation  appointed  President  Everett, 
Chief  Justice  Shaw  and  Charles  G.  Loring,  a  Committee  to  revise 
the  statutes  of  the  Law  School. 

On  January  30,  1847,  the  following  regulations  were  adopted 
by  the  Corporation  and  confirmed  by  the  Overseers,  February  18 : 

I.     General  Regulations. 

(1)  Students  are  admitted  to  the  Law  School  on  application 
to  one  of  the  Professors  of  the  Law  Faculty.     No  examination 
nor  previous  course  of  study  is  required ;  but  the  candidate  must 
be  a  graduate  of  some  collegiate  Institution  or  have  attained  the 
age  of  19  years  and  he  must  produce  satisfactory  testimonials 
of  good  moral  character. 

(2)  Every  student  on  entering  the  Law  School  shall  at  his 
election  give  a  bond  to  the  steward  in  the  sum  of  $200  with  a 
surety  resident  in  Massachusetts  for  the  payment  of  College  dues ; 
or  deposit  the  sum  of  $150  with  the  steward,  at  the  Commence- 
ment of  each  term,  to  be  retained  by  him  till  the  end  of  the  term 
and  then  to  be  accounted  for ;  and  no  student  shall  be  matriculated 
till  these  conditions  are  complied  with. 

(3)  The  students  are  required  to  board  and  lodge  at  houses 
in  the  city  of  Cambridge  licensed  for  that  purpose  by  the  Law 
Faculty.    The  rooms  in  Graduate  Hall  are  assigned  to  such  law 
students  as  apply  for  them. 

(4)  No  public  meeting  of  the  students  shall  be  held  without 
express  leave  of  some  of  the  Law  Faculty  upon  written  applica- 
tion for  that  purpose. 

(5)  Every  member  of  the  Law  School  is  expected  to  conduct 
himself  on  all  occasions  in  a  courteous  and  gentlemanly  manner. 
If  any  conduct  of  an  unbecoming,  illegal  or  immoral  character  or 
disrespectful  to  the  Government  of  the  University  take  place  on 
the  part  of  any  member  of  the  School,  it  shall  be  the  duty  of  the 
Law  Faculty  to  inquire  into  the  facts  of  the  case ;  and  they  shall 
be  authorized,  according  as  in  their  judgment  the  interests  of  the 


cases,  but  for  prosecution  of  their  studies  from  hour  to  hour.  This 
facility  of  reference  is  one  of  the  advantages  and  attractions  of  the 
School.  ...  If  the  use  of  the  books  is  to  be  restricted  it  must  be  by 
some  authority  higher  than  that  of  the  Faculty." 

For    a    spicy   account   of    this    whole   controversy,    see    Low   School   of 
Harvard  College,  by  Joel  Parker  (1871). 


340  HARVARD  LAW  SCHOOL. 

Law  School  and  the  circumstances  of  the  case  require,  to  suspend 
or  dissolve  the  connexion  of  the  offending  student  with  the  Insti- 
tution and  to  withhold  for  a  time  or  wholly  refuse  any  certificate 
or  diploma  to  which  he  otherwise  might  have  been  entitled. 

(6)  Any  member  of  the  Law  School  knowingly  participating 
with  an  undergraduate  in  the  violation  of  any  of  the  laws  of  the 
University  shall  be  subject  to  those  laws  in  like  manner  as  an 
undergraduate  and  be  liable  to  the  same  discipline  to  be  adminis- 
tered by  the  Law  Faculty. 

(7)  No  person  whose  connexion  with  the  Law  School  has 
been  suspended  or  dissolved  by  the  Law  Faculty  shall  continue 
to  board  or  lodge  at  any  licensed  boarding  or  lodging  house 
without  express  permission  of  the  Faculty. 

(8)  Members  of  the  Law  School  resident  in  any  College  hall 
shall  be  subject  to  such  regulations  for  the  preservation  of  good 
order  and  discipline  as  are  now  or  may  be  established  by  the 
University,  to  be  administered  by  the  Law  Faculty. 

(9)  All  damage  to  the  buildings,  furnishings,  or  other  property 
belonging  to  the  University  by  any  law  student  shall  be  chargeable 
to  him. 

(10)  No  person  shall  be  recommended  by  the  Law  Faculty 
to  the  Corporation  for  the  degree  of  Bachelor  of  Laws  in  the 
University  or  for  any  certificate  or  diploma  unless  he  shall  have 
been  exemplary  in  his  conduct,  diligent  in  his  studies  and  attend- 
ance upon  the  lectures  and  exercises  of  the  Law  School  and  have 
passed  an  examination  satisfactory  to  the  Professors. 

(n)  Seats  are  provided  in  the  College  Chapel  for  members 
of  the  Law  School  desirous  of  attending  the  religious  exercises 
of  the  University.  For  those  wishing  to  attend  divine  worship  in 
any  of  the  churches  of  the  city  of  Cambridge,  free  seats  will  be 
provided  on  application  for  that  purpose  to  the  Faculty. 

II.     Regulations  Relative  to  the  Library. 

(1)  The  members  of  the  Law  School  shall  have  the  use  of  the 
public  Library  of  the  University  on  the  same  conditions  as  other 
students  in  reference  to  the  borrowing,  care,  and  return  of  the 
books. 

(2)  The  Library  in  Dane  Hall  shall  be  kept  open  every  day 
in  term  time,  Sundays  excepted,  during  such  hours  as  shall  be 
appointed  by  the  Law  Faculty  for  that  purpose.  After  the  hour 
for  closing  no  light  shall  be  allowed  in  it,  without  the  special 
permission  of  one  of  the  Faculty. 

(3)  All  books  borrowed  from  the  Law  Library  shall  be  re- 
turned  on  before  the   Saturday  previous   to   the   examination, 
under  the  penalty  of  twenty-five  cents  per  diem  for  each  volume 
detained  after  that  time ;  and  if  any  volume  be  marked  or  defaced 
it  shall  be  made  good  by  the  borrower  to  the  satisfaction  of  the 
Law  Faculty. 


THK  LIBRARY   1845-18^.  341 

(4)  Their  shall  be  no  conversation,  debate,  or  argument  in 
the  Law  Library. 

(5)  Every  book  taken  down  in  the  Library  by  a  student  shall 
be   returned  to  him   to   its  place  as  soon   as  he  has  done  con- 
sulting it. 

(6)  No  books  shall  be  taken  from  the  Law  Library  or  any 
other  apartment  of  Dane  Hall  except  at  hours  to  be  appointed 
by  the  Law  Faculty  and  then  only  after  an  entry  has  been  made 
in  the  books  of  the  Librarian. 

(7)  No  newspaper,  nor  pamphlet  nor  any  book  except  law 
books  and  books  pertaining  to  questions  in  law  shall  be  brought 
into  the  Law  Library  or  Lecture  Room. 

The  Law  Faculty  shall  have  power  to  make  such  further  Regu- 
lations or  By-laws  not  inconsistent  with  the  foregoing  as  they 
may  deem  necessary  or  expedient,  subject  to  the  approval  of  the 
Corporation  of  the  University. 

October  27,  1855,  the  regulations  were  amended  by  the  Cor- 
poration by  striking  out  the  power  of  the  Law  Faculty  to  make 
regulations  and  by-laws  subject  to  the  approval  of  the  Corpora- 
tion, and  by  adding  the  following  provisions :  That  it  should  be 
the  duty  of  the  Librarian  to  open  the  Library  every  morning 
immediately  after  commons  and  close  it  at  9:00  P.  M. ;  that  a 
student  should  not  borrow  more  than  five  volumes  exclusive  of 
text  books  in  which  his  class  was  studying ;  that  the  Law  Librarian 
might  lend  books  to  such  persons  as  he  deemed  proper ;  that  dic- 
tionaries, digests,  etc.,  should  not  be  lent  except  on  application  to 
the  Professors ;  that  students  desiring  a  degree  must  give  notice 
in  writing  ten  days  before  Commencement ;  that  to  have  his  name 
placed  in  the  catalogue  a  student  must  have  complied  with  all 
requisitions  for  matriculation ;  that  smoking  in  any  part  of  Dane 
Hall  should  not  be  permitted.  ( i ) 

(i)  See  letter  of  Parsons  to  President  Walker,  Oct.  18,  1855.  Han: 
Coll.  Papers,  2nd  Series.  Vol.  XXII. 


CHAPTER  XL. 

INSTRUCTION  AND  FINANCES  1845-1869. 
COLLEGE  LECTURES. 

In  1847,  a  controversy  arose  over  one  of  the  most  esteemed 
privileges  of  the  law  students — that  of  free  attendance  upon  the 
lectures  of  the  College  Professors. 

This  privilege  had  been  held  out  at  the  very  beginning  of  the 
School,  in  1817,  as  one  of  chief  inducements  to  entrance. 
During  Judge  Story's  time,  the  law  students  had  frequented  in 
large  numbers  and  with  great  interest  the  courses  of  the  more 
popular  College  Professors ;  and  when  the  project  was  broached 
of  curtailing  this  practice,  both  Story  and  his  pupils  had  vehem- 
ently protested.  Never  had  there  been  more  eminent  Professors 
in  the  service  of  the  College  than  in  1847 — Asa  Gray,  in  Botany ; 
Cornelius  C.  Felton,  in  Greek;  James  Walker,  in  Philosophy; 
Louis  Agassiz,  in  Zoology ;  Benjamin  Pierce,  in  Mathematics ; 
John  W.  Webster,  in  Chemistry ;  Henry  W.  Longfellow,  in  Belles 
Lettres  ;  and  Jared  Sparks,  in  History.  ( i ) 

October  9,  1847,  however,  a  Committee  of  the  Corporation, 
headed  by  President  Everett,  made  a  report  recommending  that 
graduate  students  be  charged  five  dollars  a  term  for  each  course 
of  lectures  attended  in  the  College.  Professor  Greenleaf  at  once 
earnestly  objected  to  this  plan  as  an  injury  to  the  School. 

For  some  years,  a  controversy  existed  on  the  subject,  in  which 
Professor  Parsons  took  a  very  active  part.  Everett's  successor, 
President  Sparks  advocated  the  side  of  the  Law  School ;  and 
the  question  was  finally  settled  on  the  basis  stated  in  the  Catalogue 
of  1850-51: 

Law  students  are  admitted  free  to  all  courses  of  public  lectures 
delivered  to  the  undergraduates  in  the  University.  Upon  pay- 
ment of  a  fee  of  $5  for  each  course  the  law  students  may  also 
attend  the  lectures  delivered  in  the  Lawrence  Scientific  School 


( i )  For  a  most  interesting  account  of  the  College  Professors  of  that 
day  see  Harvard  Sixty  Years  Ago,  in  Autobiography  of  Seventy  Years, 
by  George  F.  Hoar. 


CONDITIONS  1845-1869.  343 

on  Zoology  and  Geology  by  Professor  Agassiz ;  on  Comparative 
Anatomy  and  Physiology  by  Professor  Wyman ;  on  Botany  by 
Professor  Gray;  and  on  payment  of  a  fee  of  $10,  the  lectures 
on  Chemistry  by  Professor  Horsford.  They  may  also  study  any 
one  of  the  foreign  languages  taught  in  the  University,  on  payment 
of  a  fee  of  $10  per  annum. (i) 


(i)  See  letter  of  Greenleaf  to  Everett,  Oct.  9,  1847,  Harv.  Coll.  Pa- 
pers, 2nd  Series,  Vol.  XV. 

"The  expenses  of  legal  education  are  already  considerably  higher  than 
at  any  other  Law  School  in  the  country  and  the  advantage  of  these 
free  lectures  is  the  only  inducement  many  have  to  come  here  rather  than 
go  elsewhere." 

Everett  replied  to  Greenleaf,  Oct.  n,  1847,  stating  that  the  chief  reason 
for  the  change  was  that,  as  the  numbers  in  attendance  at  the  Scientific 
School  increased,  many  of  its  students  desired  to  take  College  courses, 
but  that  it  was  necessary  to  charge  them  a  fee:  and  that  hence  all  the 
Professional  Schools  must  be  treated  alike,  especially  as  the  pay  of  the 
Scientific  School  Professors  was  to  consist  partially  of  fees  received. 
Moreover,  he  stated,  the  law  students  did  not  take  advantage  of  their 
privilege  except  in  the  Anatomy  and  History  courses,  and  he  was  in- 
clined to  think  the  Law  Faculty  overrated  the  value  of  the  privilege,  and 
did  an  injustice  to  their  own  fame,  in  attributing  the  attendance  at  the 
School  to  anything  other  than  its  reputation  and  that  of  its  Professors. 
(See  Harv.  Coll.  Archives,  Letters  of  the  President). 

The  Corporation,  however,  failed  to  endorse  Everett's  plan  at  this  time, 
so  far  as  the  College  courses  were  concerned,  but  provided  for  the  charge 
of  a  five  dollar  fee  for  attendance  at  lectures  in  the  Scientific  School, 
and  ten  dollars  at  foreign  language  courses.  The  law  students  thereupon 
petitioned  the  Corporation  to  change  the  hours  of  some  of  the  popular 
College  lectures  so  as  to  allow  them  to  attend  without  interfering  with 
their  law  work.  This  petition,  however,  was  refused ;  and  the  Law  Fac- 
ulty was  urged  by  the  Corporation  to  change  the  hours  of  the  law  lec- 
tures so  that  they  should  thereafter  be  given  between  11  A.  M.  and  I 
P.  M.,  by  which  arrangement  the  law  students  could  attend  the  desired 
courses  of  Professor  Sparks  and  Professor  Lovering. 

See  letters  of  Greenleaf  to  Everett,  Oct.  28,  1847,  Nov.  2,  1847;  and  of 
Everett  to  Greenleaf,  Oct.  26,  1847,  March  15,  1848,  Sept.  5,  1848,  Sept.  6, 
1848.  See  also  letter  of  David  S.  King,  O.  K.  P.  Greeny  and  John  F. 
McCarthy  to  Greenleaf,  Oct.  27,  1847,  Harv.  Coll.  Archives,  Letters  to 
the  President. 

"At  a  meeting  of  the  law  students  to-day,  the  following  paper  was 
adopted  and  the  undersigned  were  appointed  to  hand  the  same  to  you  for 
delivering  to  the  Faculty  of  Harvard  University. 

"The  members  of  the  Law  School  would  respectfully  call  the  attention 
of  the  President  and  Faculty  of  Harvard  College  to  the  present  arrange- 
ment of  the  "Public  Lectures."  The  Law  Students  are  very  anxious  to 
attend  many  of  these  lectures,  but  under  the  present  regulations  they  are 
obliged  to  forego  their  privileges,  or  sacrifice  some  of  the  lectures  of  their 
own  department.  It  will  only  be  necessary,  they  are  confident,  to  inti- 
mate to  the  President  and  Faculty  the  disagreeable  alternative  to  which 
they  are  forced,  and  remedy  will  be  applied." 

In  1848,  Professor  Parsons,  as  soon  as  he  became  Professor,  took  a 
vigorous  interest  in  the  threatened  move  against  free  lectures ;  and  in 
consequence  of  his  opposition  the  Corporation  finally  voted  for  a  com- 
promise on  Sept.  10,  1848.  (and  later  on  July  31,  1849),  by  concurring  in 
a  report  made  by  Jared  Sparks,  recommending  the  grant  to  law  students 
of  permanent  free  attendance  at  all  strictly  under-graduate  lectures. 


344  HARVARD  LAW  SCHOOL. 

COURSE  AND  METHODS  OF  INSTRUCTION. 

In  1846-47,  the  Catalogue  stated : 

The  course  of  Instruction  for  the  bar  embraces  the  various 
branches  of  Public  and  Constitutional  Law,  Admiralty,  Maritime. 
Equity  and  Common  Law  which  are  common  to  all  the  United 
States,  with  occasional  illustrations  of  Foreign  Jurisprudence. 

In  1848-49,  and  in  each  Catalogue  through  1869-70,  the  course 
of  instruction  was  thus  stated : 

The  course  of  Instruction  for  the  bar  embraces  the  various 
branches  of  the  Common  Law  and  of  Equity ;  Admiralty ;  Com- 
mercial, International  and  Constitutional  Law ;  and  of  the  Juris- 
prudence of  the  United  States. 

The  course  of  Instruction  for  the  Mercantile  Profession  is 
more  limited  and  embraces  the  principal  branches  only  of  Com- 
mercial Jurisprudence;  namely,  the  law  of  Agency,  of  Partner- 
ship, of  Bailments,  of  Bills  of  Exchange  and  Promissory  Notes, 
of  Insurance,  of  Shipping,  Navigation  and  other  maritime  con- 
cerns, of  Sales,  and  if  the  students  desire  it,  of  the  Constitu- 
tional Law. 

No  public  instruction  is  given  in  the  local  or  peculiar  municipal 
jurisprudence  of  any  particular  State;  but  the  students  are 
assisted  by  the  Professors  as  occasion  may  require  in  the  private 
study  of  the  law  and  practice  peculiar  to  their  own  State. 

The  requirements  for  admission  were  thus  stated  in  the  Cata- 
logue before  1849-50: 

No  examinations  and  no  particular  course  of  previous  study 
are  necessary  for  admission ;  but  the  student  must  produce  testi- 
monials of  good  moral  character. 

In  1849-50,  and  afterwards  to  1870,  there  was  added : 

The  student,  if  not  a  graduate  of  some  College,  must  be  at 
least  19  years  of  age  and  produce  testimonials  of  good  moral 
character. 

Students  may  enter  the  School  in  any  stage  of  their  professional 
studies  or  mercantile  pursuits.  But  they  are  advised,  with  a  view 
to  their  own  advantage  and  improvement,  to  enter  at  the  begin- 
ning of  those  studies,  rather  than  at  a  later  period. 

The  course  of  studies  is  so  arranged  as  to  be  completed  in  two 
academical  years  ;  and  the  studies  for  each  term  are  also  arranged, 
as  far  as  they  may  be,  with  reference  to  a  course  commencing 
with  that  term,  and  extending  through  a  period  of  two  years ; 


CONDITIONS  1845-1869.  345 

so  that  those  who  are  beginning  the  study  of  the  law  may  enter 
at  the  commencement  of  either  term,  upon  branches  suitable  for 
them. 

Students  may  enter  in  the  middle  or  other  part  of  a  term ;  but 
are  advised  to  enter  at  the  beginning  of  an  academic  year,  if  it 
be  convenient. 

They  are  liberty  to  elect  what  studies  they  will  pursue  accord- 
ing to  their  own  view  of  their  wants  and  attainments ;  but  as  a 
general  rule  it  is  advisable  for  them  during  the  first  term  to 
-confine  themselves  to  few  branches  as  subjects  of  regular  study, 
giving  attendance,  however,  upon  all  the  lectures. 

There  were  no  regular  classes,  in  the  modern  sense  of  the 
word;  but  in  the  Catalogue  of  1868-69  the  following  explanation 
appeared  for  the  first  time : 

The  Senior  Class  comprises  those  students  who  have  studied 
two  years  either  in  the  School  or  elsewhere,  those  who  are  attor- 
neys at  law  after  one  year's  study,  and  those  who  will  be  entitled 
to  a  degree  at  the  end  of  the  term.  The  Middle  Class  comprises 
those  who  have  studied  one  year  and  less  than  two  years,  but  are 
not  entitled  to  a  degree  at  the  end  of  the  term.  The  Junior  Class 
comprises  all  other  students. 

DEGREES. 

The  rule  as  to  degrees  established  in  1843,  was  found  to  work 
a  hardship  on  students  in  other  Law  Schools  who  wished  to 
complete  their  course  at  the  Harvard  Law  School ;  for  they  were 
given  no  credit  for  time  spent  in  study  elsewhere.  Professor 
Greenleaf,  accordingly,  wrote  to  President  Everett,  July  30, 
1847,  saying  that  students  in  the  New  Haven  Law  School  "would 
prefer  to  study  with  us,  if  the  time  spent  there  could  be  allowed 
to  them,"  and  stating  that  both  he  and  Professor  Kent  advised 
the  adoption  of  a  new  rule.(i) 

The  Corporation  thereupon  voted  on  August  14,  1847 : 

The  time  spent  in  any  Law  Institution  having  legal  authority 
to  confer  the  degree  of  Bachelor  of  Laws  by  any  student  of  good 
moral  character,  dismissed  from  such  institution  in  good  stand- 
ing, may  be  allowed  and  computed,  so  far  as  concerns  conferring 
of  the  degree  of  Bachelor  of  Laws,  as  if  it  had  been  passed  in  the 
Law  School  of  Harvard  University ;  provided  that  the  party 
shall  have  studied  one  vear  in  the  latter  Institution. 


(i)     See  letter  of  Greenleaf  in   Han'.   Coll.   Papers,  2nd    Series.   Vol. 
XV. 


346  HARVARD  LAW  SCHOOL. 

From  1847  to  1867-68,  the  rule  as  to  degrees  appeared  in  the 
Law  School  Circulars  and  in  the  Law  School  and  College  Cata- 
logues as  follows : 

Students  who  have  pursued  their  studies  for  the  term  of 
eighteen  months  in  any  law  institution  having  legal  authority  to 
confer  the  degree  of  Bachelor  of  Laws,  one  year  of  said  term 
having  been  spent  in  this  School ;  or  who,  having  been  admitted 
to  the  Bar  after  a  year's  previous  study,  have  subsequently  pur- 
sued their  studies  in  this  School  for  one  year,  are  entitled,  upon 
the  certificate  and,  recommendation  of  the  Law  Faculty,  and  on 
payment  of  all  dues  to  the  College,  to  the  degree  of  Bachelor  of 
Laws. 

In  1868-69,  the  rule  was  thus  stated  in  the  Catalogue : 

Upon  the  recommendation  of  the  Faculty,  and  on  payment  of 
all  dues  to  the  College,  students  will  be  entitled  to  a  degree  of 
Bachelor  of  Laws,  provided  they  have  studied  three  terms  in  this 
School ;  or  two  terms  in  this  School  and  six  months  or  more  in 
any  other  Institution  having  legal  authority  to  confer  this  degree ; 
or  two  terms  in  this  School,  having  been  admitted  to  the  Bar  after 
one  year's  study  of  law  before  coming  to  this  School. 

Even  with  this  complicated  provision,  the  Corporation  had  not 
succeeded  in  covering  all  possible  combinations  of  forms  of  edu- 
cation which  were  thought  proper  in  order  to  entitle  students  to 
a  degree.  Accordingly,  from  time  to  time,  the  Professors,  in 
certifying  men  for  degrees,  frequently  stated  exceptional  cases, 
on  which  the  Corporation  acted  outside  the  formal  rule.  ( I ) 

GROWTH   OF   THE   SCHOOL. 

During  the  years   1845-46    to    1851-52,    owing    to    the    many 


(i)  Thus  on  July  15,  1847,  the  Law  Faculty  certified  certain  students 
as,  "having  studied  law  for  one  year  and  being  legally  entitled  to  admis- 
sion to  the  Bar  in  the  State  of  Maine,  afterwards  pursued  the  study  of 
law  in  the  Law  School  one  year,  and  passed  satisfactory  examinations, 
and  were  admitted  to  the  Bar  while  they  were  members  of  the  School." 
Though  such  a  case  was  not  within  the  wording  of  the  rule,  they  recom- 
mended that  degrees  be  granted. 

See  Harv.  Coll.  Papers,  2nd  Series,  Vol.  XTV. 

Recommendation  of  a  degree  was  also  made  to  a  man  who  had  studied 
three  terms  at  a  Law  School  in  Toronto  and  two  terms  in  the  Harvard 
Law  School,  and  who  asked  that  his  three  terms  at  Toronto  be  regarded 
as  equivalent  to  one  term  here. 

A  certificate  given  by  the  Law  Faculty,  July  14,  1849  (See  Harv.  Coll. 
Papers,  2nd  Series,  Vol.  XVII)  shows  six  distinct  classes  of  students 
recommended  for  degrees — each  class  having  had  a  different  form  of 
education. 


£>. &-l4^t*-*~T^JLpe.    f        a/O^iS        -JC^^c.-tr-C 

hi^^^  /-T.  /*rj. 


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^x«-*-V. 


CONDITIONS  1845-1869.  347 

changes  of  Professors  after  the  death  of  Judge  Story,  and  to  the 
uncertainties  due  to  the  conflict  between  the  Overseers  and  the 
Corporation  over  the  appointment  of  Judge  Loring,  the  number 
of  students  fell  off  considerably ;  but  with  the  year  1852-53,  the 
attendance  increased,  until  in  1858-59,  the  average  number  of 
students  was  151,  a  greater  number  than  the  average  in  any  one 
year  under  the  Story  regime  (the  highest  average  number  pre- 
viously in  attendance  being  in  Story's  last  year  1844-45,  v'z-  I5°)- 

The  first  two  years  of  the  war,  1861-62,  naturally  showed 
a  rapid  decline  in  numbers ;  but  with  the  year  1863-64,  the  num- 
ber at  the  beginning  of  the  year  was  123,  the  next  year  125,  and 
the  next  year  172;  while  in  the  year  before  the  Langdell  regime, 
1868-69,  tne  number  was  138. 

It  may  be  seen,  therefore,  that  the  School  did  not  substantially 
decline  in  numbers  from  1845  to  18/0. (i) 

Notwithstanding  the  increase  in  Law  Schools,  from  9  in  1848 
to  18  in  1862,  and  the  agitation  regarding  slavery,  the  students 
for  many  years  before  the  war  came  from  nearly  two-thirds  of 
the  States  in  the  United  States,  and  a  number  from  New  Bruns- 
wick and  Nova  Scotia. (2) 


(1)  Professor  Joel   Parker,   in  his  pamphlet  on   the  Law   School   pub- 
lished in  1871,  sums  up  the  conditions  while  he  was  Professor  as  follows: 
"From  Jan.,  1848,  to  Jan.,  1858,  the  lowest  numbers  were  74  and  88,  the 
highest  143  and  150.  the  average  being  101.     From  1858  to  1868.  the  low- 
est numbers  prior  to  the  War  were  109  and  126,  the  highest  were  167  and 
176;   during  the   War,  the  lowest   in    1862  and   1863   were  69  and  79,   the 
highest    126  and   136;   after  the   War,  the  lowest   were    119  and    128,   the 
highest    168   and    177,    the    largest    number    ever    in    attendance ;— average 
during  the  whole  period,  near   129;  average,  deducting  the  period  of  the 
War,   144.     .     .     .     If  it  be  said  that  there  was  an  increase  of  population 
and  wealth  within  the  last  period,  it  must  be  said  also  that  there  was  a 
great   increase   of   Law    Schools, — quite   as   many   commercial   convulsions, 
which    always    affected    the    School, — that    after    the    slavery    agitation    in 
1854,  the  attendance  from  the  South  did  not  increase,  and  on  the  opening 
of  the  War,  with  one  or  two  exceptions,  ceased  entirely.     There  had  been 
an  average  of  nearly  30  students   from  that   section.     Besides,   the   War 
drew  heavily  from  the  School  to  recruit  the  armies  of  the  Union." 

(2)  President  Walker,  in  his  Report  of   1853,  said:  "This  School  has 
become  a  national   institution.     Not   a   third   of   its  present   numbers   are 
from   Massachusetts,  and  but  little  more  than   half  from  the   New   Eng- 
land States."     In    1854,   he   said,  "The  Law   School   continues  to   flourish 

.  .  .  notwithstanding  the  increased  expenses  of  living,  the  pressure 
of  the  times  and  other  adverse  influences,  the  number  of  students  in  at- 
tendance has  fallen  off  but  little,  standing  at  present  at  143.  They  are 
drawn  as  heretofore  from  almost  every  State  and  Territory  in  the 
Union."  In  1855,  he  said,  "Almost  every  State  in  the  Union  is  still  repre- 
sented in  the  Law  School;"  in  1856,  "The  Law  School  is  still  resorted  to 
by  students  from  every  section  and  almost  every  College  in  the  United 
States." 


348 


HARVARD  LAW  SCHOOL. 


The  attendance  at  the  School  is  shown  in  the  following  table. 
The  first  column  gives  the  number  of  students  as  stated  in  the 
College  Catalogue;  the  second  column  gives  "the  number  of  law 
students  at  the  commencement  of  the  Academical  Year"  as  stated 
in  the  President's  Annual  Reports  (except  in  the  years  1845-46, 
1846-47,  1847-48  when  the  number  given  is  that  of  the  law 
students  "at  the  Second  Term  of  the  Academical  Year")  ;  the 
third  column  gives  the  average  number  of  students  present  in  the 
School  during  the  year,  as  reported  by  the  Law  Faculty,  in  the 
President's  Annual  Reports ;  the  fourth  column  gives  the  number 
of  students  as  stated,  in  the  Law  School  Catalogue. 

1846-47(151  term) 

(2d  term) 
1 847-48(151  term) 

(2d  term) 
1848-49 
1849-50 
1850-51 

1851-52 
1852-53 
1853-54 
1854-55 
1855-56 

1856-57 
1857-58 
1858-59 
1859-60 
1860-61 
1861-62 
1862-63 

1863-64 
1864-65 
1865-66 
1866-67 


126* 

102 

127 

131-102 

117* 

131 

126 

131-91 

103* 

103 

IOO 

91  (2d  term) 

100* 

94 

90 

103 

103* 

IO2 

IOO 

103  (ist  term) 

ioo(2d  term) 

108* 

104 

no 

in 

129* 

124 

125 

J33 

135* 

148 

148 

158 

128* 

143 

125 

146 

IOO* 

III 

117 

118 

IOI* 

IO9 

115 

124 

105* 

121 

143 

119 

126* 

III 

151 

127 

146* 

166 

161 

175 

139* 

J57 

148 

164 

103 

103 

123 

H3 

89 

89 

92  (  ist  term) 

92 

80  (2d  term) 

123* 

124 

I29(  ist  term) 

ii5(2d  term) 

H4(2d  term) 

125* 

125 

139  (  ist  term) 

131  (2d  term) 

131  (2d  term) 

172 

.  .  . 

1  77  (ist  term) 

I53(2d  term) 

157 

.  .  . 

167  (ist  term) 

I2o(2d  term) 

President  Felton,  in  his  Report  of  1860,  said:  "It  is  a  gratifying  cir- 
cumstance that  at  the  commencement  of  the  present  term  .  .  .  the 
members  of  the  Law  School  represented  29  States.  Harvard  College 
has  grown  from  a  provincial  school  to  a  national  University,  comparing 
favorably,  in  point  of  numbers  and  courses  of  instruction,  with  the 
Universities  of  the  old  world." 


CONDITIONS  1845-1869.  349 

1867-68  125  ...      125  ( ist  term) 

ioi(2d  term) 
1868-69  !38  •'••     142 ( is*  term) 

ii5(2d  term) 

In  the  starred  years,  the  College  Catalogues  were  issued  in 
several  editions,  two,  three  and  four ;  and  sometimes,  two  editions 
in  each  term.  In  such  cases,  the  figures  of  the  last  edition  are 
used.(i) 

FINANCES. 

During  the  period  1845-1870,  the  financial  condition  of  the 
School  fluctuated  considerably. 

The  balance  of  $17,306.36  to  its  credit  in  1845-46  was  increased 
to  $22,118.33  in  1847-48,  the  highest  point  reached,  prior  to  1870. 
This  balance  gradually  fell  off,  until,  after  the  investment  of 
820,004.03  in  the  Brattle  House  property,  it  was  changed  to  a 
deficit  of  $6,357.47  in  1856-7.  Further  expenditures  on  the 
Brattle  House  increased  the  deficit  to  $19,035.66  in  1858-59;  then 
it  gradually  decreased,  until  the  sale  of  Brattle  House  to  the  Col- 
lege for  $15,000  reduced  the  deficit  to  $2,531.94  in  1860-61. 

The  lessened  attendance  of  students  during  the  War  raised  the 
deficit  to  $6,043  m  1862-63 ;  after  that  year,  it  declined  until,  in 
1866-67,  there  was  a  balance  of  $710.16;  and,  in  1868-69,  a  bal- 
ance of  $1,670.12. 

The  tables  of  receipts  from  term  bills,  the  amount  paid  from 
term  bills  to  the  College  Library,  and  the  annual  balances  as 
shown  on  the  books  of  the  Treasurer,  August  31  of  each  year,, 
are  as  follows  (2)  : 

(1)  The   Law    School    Annual    Catalogue    was    first    printed    as    a 
separate     catalogue,     distinct      from     the     College     Catalogue,     in     the 
second     term     of    1842-43.     They     were     commonly     printed     near   the 
end   of  the    College    terms     (generally   at   the    end   of   the   first   term)  ; 
so  that  the  total  number  of  students  as  given  by  them  differs  from  the 
total    contained   in   the    President's   Annual    Reports   and   in    the    College 
Catalogues.     Triennial  Catalogues  of  the  Law  School,  purporting  to  give 
a  complete  list  of  the  students  since  1817,  were  published  in   1836,   1839, 
1842,  1845,  1848,  1851,  and  1858. 

See  Harvard  College  Annual  Catalogues,  by  John  L.  Sibley,  Mass. 
Hist.  Soc.  Proc.,  Vol.  VIII,  (1865),  in  which  a  full  list  of  the  Catalogues 
and  totals  of  undergraduates,  and  professional  students,  recorded  in  each 
Catalogue,  and  in  each  edition,  is  given ;  and  in  which,  it  is  said :  "It  is 
not  probable  that  a  complete  file  of  the  Term  Catalogues  of  the  Law  School 
can  be  procured."  See  also  preface  by  John  H.  Arnold  to  the  Catalogue  of 
1888. 

(2)  It  is  to  be  noticed  that  from  1846-47  to  1860-61   the  Law  School 
was  obliged  to  pay  out  of  its  receipts,  to  the  College  Library,  each  year,. 


350 


HARVARD  LAW  SCHOOL. 


Term  Bills     Library 

Payments 

Balance 

1846-47 

....$10,825.00        $1,080.00 

$18,912,13 

1847-48 

.  .  .  .    11,625.00           i 

,245.00 

22,118.33 

1848-49 

8,975.00 

960.00 

19,411.66 

1849-50 

.  .  .  .     8,025.00 

865.00 

16,777.48 

1850-51 

.  .  .  .     8,690.00 

925.00 

15.963-89 

1851-52 

.  .  .  .     8,950.00 

995.00 

14,411.56 

1852-53 

12,075.00 

905.00 

16,484.81 

1853-54 

13,675.00 

7I7-50 

17,146.31 

1854-55 

12,075.00 

647.50 

i7,679-5i 

1855-56 

.  .  .  .     9,100.00 

475.00 

16,462.43 

1856-57 

.  .  .  .     9,600.00 

510.00 

•J        +s/ 

1857-58 

,    10,425.00 

562.50 

•J/     tj 

1858-59 

T      *J 

.    11,807.63 

»J           J 

61,0.00 

\j      *j  y 

1859-60 

P**3r/        O 

,   1  5,235.  27 

\J 

802.50 

•J:/ 

1860-61 

*J  ~     *J\J       / 

,   1^,475.00 

722.50 

1861-62 

o,  i  /  «j 
.  .  .  .     7,780.00 

/            «J 

1862-63 

7.QSO.I2 

186^-64 

/  ,;7J 
.  .  .  .      IO,9I5.OO 

^    O       ^ 

1864-65 

.  .  .  .      I2,l8O.OO 

Deficit 


$  6,357.47 
15,145-20 
19,035.66 
17,299.21 
2,53i-94 
5,338.52 
6,043.00 
5,003.74 
870.93 

sums  varying  from  5  per  cent,  to  n  per  cent,  of  the  amount  of  its  term 
bills — the  sums  deducted  being  supposed  to  represent  the  Law  School's 
proportion  for  use  of  the  College  Library  by  law  students.  For  many 
years,  the  Law  Faculty  protested  against  this  charge,  which  seems  to 
have  been  placed  upon  the  School  without  any  direct  vote  of  the  Cor- 
poration. That  body,  however,  on  June  29,  1850,  voted : 

"That  the  Treasurer  be  authorized  to  reduce  the  charge  to  the  fund 
of  the  Law  School  for  the  use  of  the  Library  to  such  a  sum  as  will  be 
equal  to  $5  per  annum  for  each  student  in  the  School." 

In  January,  1853,  (see  Harv.  Coll.  Papers,  2nd  Series,  Vol.  XIX), 
Professors  Parker  and  Parsons  addressed  a  Memorial  to  the  Corporation 
urging  the  injustice  of  this  charge,  and  saying  that  they  could  only  think 
of  three  possible  reasons  for  it :  first,  "that  it  is  for  benefits  received ;" 
second,  "that  it  is  our  fair  contribution  to  a  general  and  useful  expendi- 
ture ;"  third,  "that  the  money  is  wanted  by  the  College  Library,  and  we 
have  a  fund  within  the  control  of  the  Corporation,  and  they  think  proper 
to  take  it."  No  one  of  these  reasons,  they  stated,  afforded  a  good 
ground  for  the  tax  which  caused  a  direct  detriment  to  the  Law  School, — 
"our  Library  is  less  complete  at  this  time  than  when  we  came  into  office. 
The  reason  is  that  many  of  our  most  indispensable  works  are  in  series, 
and  the  late  volumes  have  not  been  purchased ;  and  the  reason  for  this 
is  that  the  money  has  been  taken  from  us  for  the  College  Library,  which 
we  ought  to  have  spent  on  our  own." 

Jared  Sparks  wrote  to  President  Walker,  Feb.  12,  1853,  endorsing  this 
Memorial,  and  saying:  "There  seems  much  force  in  the  argument.  In 
fact  I  never  knew  on  what  principle  the  Law  School  was  taxed  so 
heavily." 

The  College  Treasurer  reported,  to  the  Corporation,  March  26,  1853 : 
"The  tax  is  undoubtedly  a  heavy  one  on  the  School,  and  restricts  very 
much  its  means  of  adding  to  its  own  Library ;  and  on  this  Library,  its  com- 
pleteness and  efficiency,  the  institution  must  very  greatly  depend  for  suc- 
cess." 

Notwithstanding  all  these  strong  expressions,  the  Corporation  took  no 
steps  to  abolish  this  tax;  but  it  was  finally  dropped,  without  apparent 
formal  action,  after  the  year  1860-61. 


CONDITIONS  1845-1869.  351 

1865-66....   14-70475         4464.55        

1866-67 13.035.00         710.16        

1867-68 10,382.50         2,535.48        

1868-69....   11,527.50         1,670.12        


Apart  from  tuition  fees,  the  endowment  of  the  School  was 
still  extremely  limited.  Its  receipts  other  than  from  term  bills 
were  as  follows: 

(1)  The  yearly  income  from  the  Dane  Professorship  fund 
was  $750,  until  1866-67,  in  which  year,  it  was  $552.08.    In  1867- 
68,  it  increased  to  $975  ;  and  in  1868-69,  to  $687.50. 

(2)  The  yearly  income  from  the  Royall  Professorship  Fund 
was  $397.18  up  to  1866-67,  in  which  year,  it  increased  to  $1,042.- 
50;  in  1867-68,  it  was  $516.34;  in  1868-69,  $575.91. 

(3)  Beginning  with  the  year   1847-48,  the  Law   School  re- 
ceived, every  third  year,  the  sum  of  $151.02  ($218.98  in  1868-69) 
as  income  from  a  fund  of  $2,000  received  by  Harvard  College, 
in  1839-40,  under  the  will  of  John  Foster,  who  died  in  1836. (i) 

(4)  Beginning  in  1861-62,  the  School  received  its  share  of  the 
income  from  the  magnificent  bequest  of  Benjamin  Bussey. 

The  yearly  income  from  the  Bussey  Professorship  Fund  was : 
1861-62,  $2,500.82:  1862-63,  $2,802.27;  1863-64,  $2,802.26;  1864- 
65,  $2,802.25;  1865-66,  $3,195;  1866-67,  $2,400;  1867-68,  $1,700: 
1868-69,  $9i5-33. 

(5)  In    1868-69,   $5.627.61    was   received    from   the   Bussey 
Trust  fund. 

(6)  Small  miscellaneous  receipts  from  sales  of  books,  etc. 
The  expenditures  during  these  years  may  be  divided  into  six 

classes.  (2) 

( i )  Salaries  of  Professors  and  Instructors :  Professor 
Greenleaf  received  in  1845-46  (the  year  of  Story's  death)  $1,500 
salary,  and  a  grant  of  $2,000  additional;  in  1846-47,  $3,000;  in 
1847-48,  $3,000  and  a  grant  of  $500  additional. 


(1)  John  Foster  was  born  in  Cambridge  in   1782,  and  graduated  from 
Harvard  in   1802.     Owing  to  ill  health,  he  lived  a  life  of  seclusion,  and 
largely  devoted  himself  to  charity.     By  his  will  he  left  this  sum  to  the 
College  "in  trust  for  the  sole  purpose  of  assisting  in  such  manner  and  at 
such  times  as  they  shall  consider  best,  such  students  of  Theology,  Law, 
and  Medicine  or  either  of  them,  as  shall  be  poor  and  need  such  pecuniary 
assistance  while  pursuing  their  preparatory  professional  studies." 

See  History  of  Harvard  University,  by  Josiah  Quincy,  Vol.  II. 

(2)  In    1850,  a   move  was  made  by  the  Corporation   to   secure   repay- 
ment from  the  Law  School  funds  of  the  amount  which  the  College  had 
paid  out  of  its  general  funds  for  the  erection  of  Dane  Hall  and  interest — 


352  HARVARD  LAW  SCHOOL. 

Professor  Parker  received  in  1848-49,  $3,000,  and  the  same 
sum  each  year  through  1854-55 ;  from  1855-56  through  1864-65. 
$2,000;  in  1865-66  and  1866-67,  $3>oo°;  m  1867-68,  $1,500.  Pro- 
fessor Parsons  received  in  1848-49,  $3,000  and  the  same  sum. 
each  year  through  1866-67;  m  1867-68  and  1868-69,  $3>75°- 
Professor  Kent  received  $3,000  in  1846-47.  Professor  Allen, 
received  $2,000  in  1849-50.  Professor  Washburn  received  in, 
l854-55>  $75°;  in  l855-56»  $2,500;  from  1856-57  through  1866-67, 
$3,000;  in  1867-68  and  1868-69,  $3,750.  Professor  Holmes. 

a  sum  then  amounting  tc  $21,980.95.  A  Committee,  consisting  of  Samuel 
A.  Eliot  and  Benjamin  R.  Curtis  reported  on  this  as  follows : 

"With  regard  to  the  Law  School,  it  has  been  so  flourishing  that  within 
the  last  twenty  years  it  has  accumulated  a  fund  of  $19,000  and  upwards,, 
besides  paying  more  than  $30,000  for  its  Library  and  $12,700  on  the  en- 
largement of  its  building,  in  addition  to  the  salaries  and  other  expenses. 
This  is  an  average  net  accumulation  of  more  than  $3,000  a  year ;  and 
although  it  will  perhaps  be  necessary  to  increase  its  expenditure  for  Pro- 
fessors' salaries,  so  as  to  raise  the  value  of  the  education  there,  and  thus 
compensate  in  some  degree  for  the  loss  of  Judge  Story's  widely  extended 
reputation,  yet  there  may  be  a  reasonable  confidence  felt  that  there  will 
continue  to  be  an  annual  gain  to  some  extent. 

The  increase  of  the  Library  will  require  less,  snd  there  may  be  some 
economy  in  expenses.  But  even  if  there  should  not  be  a  surplus,  yet  the 
prospect  is  that  no  long  time  will  elapse  before  some  benefit  may  be 
derived  from  the  great  bequest  of  Mr.  Bussey ;  and  when  it  shall  be 
fully  received,  there  will  probably  be  enough  to  sustain  two  Professor- 
ships or  nearly  so.  With  these  prospects,  the  Committee  cannot  but 
consider  the  debt  a  good  one,  of  which  the  payment  may  be  expected  by 
installment,  which  will  work  no  hardship  on  the  School,  and  will  restore 
an  important  portion  of  its  funds  to  the  use  of  the  undergraduate  depart- 
ment. 

In  the  mean  time,  they  think  that  a  charge  for  the  interest  of  the 
principal  sum  could  be  afforded  by  the  School.  .  .  .  The  principal 
may  be  also  easily  refunded  ...  by  paying  a  moderate  percentage 
annually.  But  this  may  be  left  till  another  year  or  two  shaH  have  given 
evidence  of  the  ability  of  the  institution  to  do  it  without  inconvenience. 
The  Committee  will  only  add  that  the  Professors  recognize  the  validity 
of  the  claim,  and  will  interpose  no  obstacle  to  its  payment." 

Accordingly  the  Corporation  voted  on  June  i,  1850:  "That  there  be 
charged  interest  at  the  rate  of  6  per  cent,  per  annum  on  the  sum  due  from 
the  Law  School  to  the  stock  account,  as  ascertained  by  the  accompanying 
statement." 

Vigorous  opposition  to  this  action  on  the  part  of  the  Corporation  was 
made  by  Professors  Parker  and  Parsons ;  and  they  wrote  to  the  Cor- 
poration, July  15,  1850,  (see  Harv.  Coll.  Papers,  2nd  Series,  Vol.  XVI ),. 
stating  that  the  statement  of  the  Committee  that  "the  Professors  recog- 
nize the  validity  of  the  claim  and  will  interpose  no  obstacle  to  its  pay- 
ment" was  inaccurate;  that  Mr.  Parsons  had  had  some  talk  with  Mr. 
Eliot  and  Mr.  Curtis,  but  had  not  fully  understood  the  matter,  and  that 
they  now  "ask  leave  therefore  to  express  the  hope  that  the  Corporation 
will  not  proceed  to  take  from  the  Law  School  this  fund  or  any  part  of  it,, 
or  take  any  step  which  will  imply  or  require  such  transfer,  or  make  any 
charge  on  account  against  the  Law  School  founded  on  the  claim  afore- 
said, without  giving  them  an  opportunity  to  be  heard." 

As  no  further  reference  to  this  matter  appears  in  the  College  Records,, 
it  would  seem  that  the  proposed  refund  was  not  insisted  upon. 


CONDITIONS  1845-1869.  353 

received  in  1868-69,  $3,750.  There  was  paid  to  the  following 
gentlemen  as  Instructors — to  John  C.  Adams  in  1845-46,  $500; 
to  Benjamin  R.  Curtis  in  1847-48,  $500  for  his  course  of  lec- 
tures; to  Franklin  Dexter  in  1848-49,  $1,500;  to  Luther  S.  Cush- 
ing  in  1848-49,  $1,000;  in  1849-50,  $325;  in  1850-51,  $600:  to 
Edward  G.  Loring  in  1851-52,  $500;  in  1852-53,  $1,000;  in  1853- 
54,  $1,750;  in  1854-55,  $750.  Mr.  Gurowski  received  $100  in 
1850-51  for  his  lectures  on  Civil  Law.  Richard  H.  Dana  Jr.  re- 
ceived $1,000,  in  1866-67,  and  $1,500,  in  1867-68,  for  his  course 
of  lectures. 

(2)  Purchase  of  Books  (See  Chapter  XXXIX). 

(3)  Prizes  to  students,  four  in  number,  of  from  $30  to  $60, 
beginning  in  1849-50. 

(4)  Salary  of  Janitor,  beginning  at  $300,  and  raised,  in  1849- 
50,  to  $400,  and,  in  1858-59,  to  $475,  in  1865-66,  to  $500,  and  in 
1867-68,  to  $600.     In  1867-68,  a  salary  of  $500  was  paid  to  the 
Assistant  Steward  of  the  College. 

(5)  Salary  of  Librarian  (See  Chapter  XXXIX). 

(6)  Insurance,  binding  of  books,  etc. 

The  chief  loss  to  the  School  came  through  the  unfortunate 
experiment  in  the  Brattle  House,  the  investment  in  which  was 
as  follows:  Purchase  of  lands  and  building,  $19,291.50;  repairs, 
furniture,  etc.,  $12,981.57,  $1,132.33;  interest  on  funds  provided 
by  the  College,  $3,124.79,  $772.92 ;  total,  $37,303.11. 

The  income  received  from  rents  was:  1857-58,  $2,674.67; 
1858-59,  $2,573.02;  1859-60,  $2,010.37;  1860-61,  $752.65;  total, 
$8,010.71. 

The  property  was  sold  to  the  College  in  1860-61  for  $15,000. 
The  balance  of  investment  in  Brattle  House  as  stated  by  the 
Treasurer,  Aug.  31,  1861,  was  $17,254.87;  and  this  sum  repre- 
sented the  net  loss  to  the  Law  School  from  this  ill-judged 
venture. 


CHAPTER  XLI. 
ELIOT  AND  LANGDELL. 

On  May  19,  1869,  occurred  an  event  which  marked  a  revolution 
in  the  affairs  of  the  Law  School,  as  well  as  in  the  other  branches 
of  the  University — the  election  by  the  Board  of  Overseers  of 
Charles  William  Eliot  as  President  of  Harvard  College. 

At  the  beginning  of  the  fall  term,  President  Thomas  Hill  had 
resigned,  September  30,  1868,  and  Rev.  Andrew  Preston  Pea- 
body,  who  had  previously  served  in  such  capacity,  was  chosen 
Acting  President. 

The  members  of  the  Corporation  at  this  time  were,  John  A. 
Lowell,  George  Putnam,  Chief  Justice  George  T.  Bigelow, 
Francis  B.  Crowinshield,  Nathaniel  Thayer,  and  the  Treasurer, 
Nathaniel  Silsbee. 

The  Board  of  Overseers  comprised  John  H.  Clifford  (Presi- 
dent), Edward  Everett  Hale,  William  A.  Richardson,  Nathaniel 
B.  Shurtleff  (Secretary),  L.  R.  Thayer,  R.  T.  Robinson,  John  C. 
Ropes,  D,  H.  Mason,  Francis  Cogswell,  Rev.  James  Walker,  R.  S. 
Rotch,  Richard  H.  Dana,  George  M.  Brooks,  J.  W.  Bacon,  James 
Lawrence,  T.  B.  Thayer,  G.  W.  C.  Noble,  William  Gray,  Rev. 
James  Freeman  Clarke,  Darwin  E.  Ware,  Samuel  Eliot,  Ralph 
Waldo  Emerson,  Seth  Sweetser,  Francis  E.  Parker,  Henry  Lee, 
J.  Ingersoll  Bowditch,  E.  Rockwood  Hoar,  Francis  Parkman, 
Theodore  Lyman,  and  Charles  W.  Eliot. 

Dr.  Peabody  was  looked  upon  by  many  as  the  natural  successor 
to  President  Hill.  Two  members  of  the  Corporation,  however, 
held  a  different  view.  It  appears  that  Lowell  and  Crowinshield, 
both  directors,  and  the  latter  treasurer,  of  the  Merrimack  Manu- 
facturing Company,  a  wealthy  and  prominent  corporation,  had, 
three  years  before,  in  1865,  been  much  impressed  with  the  abili- 
ties of  a  young  man,  a  graduate  of  the  Class  of  1853.  who  had 
been  a  tutor  in  Mathematics  at  Harvard  College,  1854-58,  Assist- 
ant Professor  in  Mathematics  and  Chemistry  at  the  Lawrence 
Scientific  School,  1858-66,  Assistant  Professor  in  Chemistry  at 
Harvard  College,  1861-63,  and  who  had  then  resigned  for 
purposes  of  study  in  Europe.  To  this  young  Mr.  Eliot,  they  had 


ELIOT  AND  LANGDELL.  355 

tendered  the  important  position  of  superintendent  of  the  mill  with 
a  salary  of  $5,000.  Mr.  Eliot,  who  was  then  in  Rome,  had  re- 
fused this  offer,  however;  and  accepted,  a  few  weeks  later,  the 
Professorship  in  Analytical  Chemistry  in  the  Massachusetts  In- 
stitute of  Technology,  which  was  to  be  opened  October  i,  1865. 

Three  years  had  elapsed,  but  this  young  Professor  was  still  in 
the  minds  of  these  two  members  of  the  Corporation.  At  Com- 
mencement in  1868,  he  had  been  elected  an  Overseer  of  the 
College.  He  was  known  to  be  energetic,  original,  masterful,  and 
progressive.  His  views  on  educational  matters  were  vigorous, 
perhaps  even  revolutionary ;  and  two  articles  which  had  appeared 
from  his  pen  in  the  Atlantic  Monthly,  in  February  and  March 
1869,  entitled  The  Neiv  Education,  had  stirred  all  who  were 
interested  in  such  problems. 

With  these  facts  in  mind,  and  perhaps  not  averse  to  making 
a  complete  change  in  the  order  of  things,  the  Corporation,  on 
March  12,  1869,  elected  Charles  William  Eliot,  then  thirty-five 
years  old,  as  President  of  Harvard  College, — the  youngest  Pres- 
ident since  Henry  Dunster,  in  1640. 

The  vote  came  before  the  Board  of  Overseers,  March  18, 
where,  owing  to  the  opposition  aroused,  it  was  referred  to  a  Com- 
mittee of  four,  who,  on  April,  reported  in  favor  of  confirming 
the  choice.  The  Board,  however,  hesitated,  postponed  action, 
and  on  April  21,  referred  the  matter  back  to  the  Corporation. 
The  Corporation  stood  by  its  guns;  and,  on  May  19,  voted  that 
they  remained  "unanimously  of  the  opinion  that  their  action  in 
electing  Mr.  Eliot  is  adapted  to  promote  the  best  interests  of  the 
University." 

Thereupon  the  Overseers  capitulated,  and  by  a  vote  of  16  to  8 
confirmed  the  election. (i)  On  the  following  day,  Mr.  Eliot 
wrote  to  his  friend  and  classmate,  Arthur  T.  Lyman(2)  : 

The  vote  of  yesterday  is  perfectly  satisfactory  to  me.  Two 
thirds  of  the  board  were  for  confirmation  so  that  it  was  a  fair 
expression  of  opinion.  As  far  as  I  have  heard  the  objection  to 
me,  I  quite  agree  with  them.  As  Theodore  (Lyman)  told  Ed- 
ward (Everett)  Hale,  "I  agree  with  your  general  views,  only  you 
don't  know  Eliot."  Look  out  for  a  long  season  of  debates  and  a 
laborious  sifting  out  of  wheat  by  slow  degrees. 

(1)  See  How  President  Eliot  was  elected,  by  W.  A.  Richardson,  Har- 
vard Graduates  Magazine,  Vol.  VII. 

(2)  Harvard  Graduates  Magazine,  Vol.  XII. 


356  HARVARD  LAW  SCHOOL. 

The  new  President  attended  the  meeting  of  the  Corporation 
May  29,  but  did  not  formally  assume  charge  of  the  College  until 
after  the  close  of  the  academic  year.  October  19,  he  delivered 
his  inaugural  address,  which  contained  the  seeds  of  most  of  the 
great  reforms  of  which  he  has  since  seen  the  fruition.  ( i )  These 
reforms,  however,  as  is  well  known,  have  not  in  all  cases  been 
freely  or  readily  accepted,  and  to  accomplish  many  of  them  has 
required  constant  labor.  No  wiser  advice  could  have  been  given 
to  the  new  President  than  that  contained  in  the  remark  which 
George  S.  Hillard  is  said  to  have  made  to  Mr.  Eliot,  on  meeting 
him  on  the  street  soon  after  his  election.  (2)  "Do  you  know 
what  qualities  you  will  need  most  out  there  at  Harvard?" — 
President  Eliot  replied,  he  supposed  he  would  need  industry, 
courage  and  the  like. — "No,"  said  Mr.  Hillard,  "What  you  will 
need  is  patience — patience — patience." 

The  manner  in  which  the  new  President  assumed  his  office, 
and  the  impression  made  upon  two  famous  Harvard  graduates, 
is  well  illustrated  in  the  following  letters. 

On  December  10,  1869,  James  Russell  Lowell  wrote  to  Charles 
Eliot  Norton(3)  :  "Our  new  President  of  the  College  is  winning 
praise  of  everybody.  I  take  the  inmost  satisfaction  in  him  and 
think  him  just  the  best  man  that  could  have  been  chosen.  We 
have  a  real  Captain  at  last." 

On  April  3,  1870,  Dr.  Oliver  Wendell  Holmes  wrote  to  John 
Lathrop  Motley  (4)  : 

Another  sensation  in  a  somewhat  different  sphere  is  our  new 
Harvard  College  President.  King  Log  has  made  room  for  King 
Stork.  Mr.  Eliot  makes  the  Corporation  meet  twice  a  month 
instead  of  once.  He  comes  to  the  meeting  of  every  Faculty,  ours 
among  the  rest,  and  keeps  us  up  to  eleven  and  twelve  o'clock 
at  night  discussing  new  arrangements.  He  shows  an  extraordina- 
ry knowledge  of  all  that  relates  to  every  department  of  the 
University,  and  presides  with  an  aplomb,  a  quiet,  imperturbable, 
serious  good-humor,  that  it  is  impossible  not  to  admire.  We  are, 
some  of  us,  disposed  to  think  him  a  little  too  much  in  a  hurry 
with  some  of  his  innovations,  and  take  care  to  let  the  Corporation 


(1)  See  full  report  of  this  address  in  Harvard  Graduates  Magazine, 
Vol.  XII. 

(2)  President  Eliot  as  an  Educational  Reformer,  by  President  William 
DeWitt  Hyde,  in  Harvard  Graduates  Magazine,  Vol.  VII. 

(3)  Letters  of  James  Russell  Lowell,  Vol.  II. 

(4)  Life  and  Letters  of  Oliver  Wendell  Holmes,  by  John  T.   Morse, 
Jr.,  Vol.  II. 


ELIOT  AND  LANGDELL.  357 

know  it.  I  saw  three  of  them  the  other  day,  and  found  that 
they  were  on  their  guard,  as  they  all  quoted  that  valuable  precept, 
festina  lente,  as  applicable  in  the  premises.  I  cannot  help  being 
amused  at  some  of  the  scenes  we  have  in  our  Medical  Faculty, — 
this  cool,  grave  young  man  proposing  in  the  calmest  way  to  turn 
everything  topsy-turvy ;  taking  the  reins  into  his  hands  and  driv- 
ing as  if  he  were  the  first  man  that  ever  sat  on  the  box.  I  say 
amused,  because  I  do  not  really  care  much  about  most  of  the 
changes  he  proposes,  and  I  look  on  a  little  as  I  would  at  a  rather 
serious  comedy. 

"How  is  it,  I  should  like  to  ask,"  said  one  of  our  number  the 
other  day,  "that  this  Faculty  has  gone  on  for  eighty  years  man- 
aging its  own  affairs  and  doing  it  well, — for  the  Medical  School 
is  the  most  flourishing  department  connected  with  the  College, — 
how  is  it  that  we  have  been  going  on  so  well  in  the  same  orderly 
path  for  eighty  years,  and  now,  within  three  or  four  months, 
it  is  proposed  to  change  all  our  modes  of  carrying  on  the  School  ? 
It  seems  very  extraordinary,  and  I  should  like  to  know  how  it 
happens." 

"I  can  answer  Dr. 's  question  very  easily,"  said  the 

bland,  grave  young  man  :  "There  is  a  new  President." 

The  tranquil  assurance  of  this  answer  had  an  effect  such  as  I 
hardly  ever  knew  produced  by  the  most  eloquent  sentences  I  ever 
heard  uttered.  Eliot  has  a  deep,  almost  melancholy-sounding 
voice,  with  a  little  of  that  character  that  people's  voices  have  when 
there  is  somebody  lying  dead  in  the  house,  but  a  placid  smile  on 
his  face  that  looks  as  if  it  might  mean  a  deal  of  determination, 
perhaps  of  obstinacy.  I  have  great  hopes  of  his  energy  and  devo- 
tion to  his  business,  which  he  studies  as  I  suppose  no  President 
ever  did  before ;  but  I  think  the  Corporation  and  Overseers  will 
have  to  hold  him  in  a  little,  or  he  will  want  to  do  too  many  things 
at  once. 

Again,  on  December  22,  1871,  Dr.  Holmes  wrote  to  Motley: 

Our  new  President,  Eliot,  has  turned  the  whole  University  over 
like  a  flapjack.  .  .  .  It  is  curious  to  see  a  young  man  like 
Eliot,  with  an  organizing  brain,  a  firm  will,  a  grave,  calm,  digni- 
fied presence,  taking  the  ribbons  of  our  classical  coach-and-six, 
feeling  the  horses'  mouths,  putting  a  check  on  this  one's  capers 
and  touching  that  one  with  the  lash, — turning  up  everywhere,  in 
every  Faculty  (I  belong  to  three),  on  every  public  occasion,  at 
every  dinner  orne,  and  taking  it  all  as  naturally  as  if  he  had  been 
born  President. 

Meanwhile  the  Law  School  began  the  fall  of  1869  in  a  prosper- 
ous state,  and  quite  unconscious  of  the  impending  revolution  in 
its  administration.  On  October  21,  the  Professors  reported  to  the 


358  HARVARD  LAW  SCHOOL. 

Visiting  Committee  of  the  Overseers,  that  "the  condition  of  the 
School  at  the  present  time  is  eminently  satisfactory.  The  whole 
number  of  students  is  114  from  20  States  and  New  Brunswick 
and  Nova  Scotia,  of  whom  40  are  from  Massachusetts."  They 
reported  also  that  at  the  beginning  of  the  previous  year,  when 
Professor  Holmes  succeeded  Professor  Parker,  five  changes  in 
the  system  of  teaching  had  been  made : 

First:  Topics  or  questions  were  given  out  upon  which  written 
opinions  were  given  by  students  designated  for  that  purpose. 
After  these  were  read  in  the  presence  of  the  Faculty  and  the 
students  oral  discussion  was  held. 

Second:  All  the  Faculty  are  present  at  all  the  Moot  Courts 
instead  of  each  one  in  his  turn  as  heretofore. 

Third:  Two  prizes  for  essays  by  students  in  the  junior  classes 
were  added  to  the  four  prizes  heretofore  offered. 

Fourth:  Written  exercises  in  pleading  are  received  from 
students  in  cases  given  for  the  purpose;  and  are  afterwards 
commented  upon  by  one  of  the  Professors. 

Fifth:  The  librarian  takes  an  account  of  the  attendance  of 
each  student  at  each  lecture. 

These  changes  were  offered  for  the  consideration  of  the  Cor- 
poration and  received  their  approval.  After  a  year's  experiment 
we  can  speak  of  them  as  eminently  satisfactory  and  useful.  We 
believe  they  are  regarded  by  the  students,  as  they  certainly  are  by 
the  Faculty  as  decided  improvements.  The  attendance  of  the 
students,  on  the  exercises,  their  interest  in  their  studies  and  their 
improvement,  so  far  as  we  can  judge  of  it  by  any  tests  we  can 
apply,  leave  nothing  to  be  desired.  The  Professors  do  all  they 
can  to  cultivate  free  and  cordial  personal  intercourse  with  the 
students;  and  their  efforts  in  this  direction  appear  to  be  appre- 
ciated and  reciprocated. 

While,  in  the  eyes  of  the  Professors,  the  condition  of  the 
School  appeared  entirely  satisfactory,  there  were  many  members 
of  the  Bar  who  felt  that  there  ought  to  be  a  considerably  higher 
standard  of  legal  education,  and  who  were  dissatisfied  with  the 
system  in  vogue  at  the  School.  This  feeling  was  now  voiced  by 
the  Visiting  Committee,  which,  through  its  Chairman,  Francis  E. 
Parker,  made  to  the  Board  of  Overseers  in  1869,  one  of  the  brief- 
est reports  on  record : 

The  condition  and  prospects  of  the  Law  School  have  been  the 
subject  of  much  discussion  by  the  Committee,  but  they  have 
found  the  subject  too  important  and  too  difficult  to  mature  and 
agree  upon  any  recommendations  for  change  which  they  can  offer 


ELIOT  AND  LANGDELL.  359 

to  the  Overseers.  They  therefore  make  no  further  report,  but  say 
only  in  conclusion  that  in  their  opinion  the  whole  subject  should 
be  carefully  considered  by  a  committee  so  constituted  as  fully  to 
represent  and  command  the  respect  of  the  legal  profession  as  well 
as  to  have  weight  with  the  Corporation,  the  Overseers  and  the 
public. 

One  of  the  first  results  of  this  rather  derogatory  report  was  the 
tendering  by  Professor  Parsons  of  his  resignation  as  Dane  Pro- 
fessor, December  u,  1869,  to  take  effect  March  i,  1870. (i)  Par- 
sons had  served  in  his  position  for  twenty-one  years.  "His 
teachings  and  writings  have  done  much  to  maintain  and  build  up 
the  reputation  of  the  Law  School'',  so  wrote  the  President.  As 
senior  member  of  the  Law  Faculty,  he  was  the  nominal  Dean. 
He  was  now  sixty-three  years  of  age,  and  he  felt  that  at  his  time 
of  life,  it  was  too  late  for  him  to  remodel  all  his  old  views  and  to 
co-operate  in  the  novel  projects  of  reformation  which  the  new 
President  was  already  proposing.  The  news  of  Parson's  resigna- 
tion caused  great  sorrow  and  dismay  amongst  the  students  of  the 
School,  as  well  as  among  many  of  his  old  pupils.  Nor  were  these 
feelings  allayed  when  the  news  was  spread  abroad  that  on  the 
very  day  when  the  Corporation  accepted  Parsons'  resignation, 
January  6,  1870,  it  had  proceeded  to  elect  as  his  successor  in  the 
Dane  Professorship,  a  young  New  York  lawyer,  whose  name  was 
hardly  known  in  Harvard  College  or  in  Boston  legal  circles — 
Christopher  Columbus  Langdell. 

Langdell  had  been  a  student  in  the  Law  School  from  1851  to 
1854.  Leaving  in  December,  1854,  he  had  been  admitted  to  prac- 
tice in  New  York,  but  he  had  soon  retired  from  active  court  work. 
His  constant  study  in  the  Library  of  the  New  York  Law  Institute 
attracted  the  attention  of  many  of  the  leaders  of  the  Bar  and  he 
was  frequently  employed  by  them  on  the  preparation  of  briefs, 
opinions,  and  pleadings,  and  notably  by  Charles  O'Conor,  the 

(i)  Professor  Parsons  continued  to  live  in  Cambridge,  retaining  all  his 
old  popularity  with  his  former  pupils  and  being  consulted  by  them  on  fre- 
quent occasions.  His  interest  in  his  writings  for  the  Swedenborgian  faith, 
and  in  the  various  new  editions  of  his  law  books  which  continued  to  have 
great  sale  absorbed  most  of  his  attention.  He  died  on  January  26,  1882. 
His  principal  publications  were  as  follows — Contracts  (1853);  Mercantile 
Laic  (1856);  Memoirs  of  Theophilus  Parsons  (1859);  Lazy  of  Business 
for  Business  Men  (1857);  Maritime  Law  (1859);  Marine  Insurance 
(1868);  Promissory  Notes  and  Bills  of  Exchange  (1862);  Partnership 
(1867)  ;  Shipping  and  Admiralty  (1869)  ;  Political,  Personal  and  Property 
Rights  of  a  Citizen  of  the  United  States  (1875)  ;  Infinite  and  Finite  (1872)  ; 
Dens  Homo  (1867)  ;  Outlines  of  the  Religion  and  Philosophy  of  Sweden- 
borg  (1875)- 


360  HARVARD  LAW  SCHOOL. 

leading  New  York  lawyer  of  the  time,  who  termed  Langdell,  "the 
best  read  lawyer  in  New  York." 

In  1858,  he  appeared  as  counsel  writh  Peleg  W.  Chandler  in  a 
Massachusetts  case  (Kuhn  v.  Webster,  12  Gray  3)  involving  the 
construction  of  a  will,  and  won  the  case  against  the  veteran 
Samuel  E.  Sewall  and  Professor  Emory  Washburn  as  opposing 
counsel.  In  the  same  year,  he  accepted  the  offer  of  a  partnership 
with  William  Stanley;  and  in  1860,  Judge  Edwards  Pierrepont 
(afterwards  Attorney  General  of  the  United  States  and  Minister 
to  England)  joined  the  firm.  In  1864,  the  firm  became  Stanley, 
Langdell  and  Brown,  the  latter,  Addison  Brown,  having  been  a 
fellow  student  in  the  Law  School  with  Langdell,  and  later  United 
States  District  Judge. 

Langdell's  work  was,  however,  restricted  almost  exclusively 
to  the  office,  and  his  devotion  to  study  was  so  great  that  he  estab- 
lished his  bedroom  in  connection  with  his  law  office. 

Such  was  the  man  to  whom  President  Eliot,  of  his  own  motion 
and  with  no  outside  suggestion,  turned  to  replace  Professor 
Parsons.  It  is  no  wonder  that  the  lawyers  of  Boston  and  the 
governing  bodies  of  the  University  were  struck  dumb  with  amaze- 
ment. 

For  the  first  time  in  the  life  of  Harvard  Law  School,  it  was 
proposed  to  choose  as  Professor,  a  young  man  of  no  legal  reputa- 
tion (except  among  the  few  lawyers  who  had  employed  him),  a 
man  of  no  national  fame,  and  a  lawyer  who  had  had  substantially 
no  court  practice. 

But  President  Eliot  knew  well  what  he  was  doing  and  what  he 
proposed  to  do;  and  he  has  himself  described  the  manner  of  his 
choice(i)  : 

I  remembered  that  when  I  was  a  Junior  in  College  in  the  year 
1851-1852,  and  used  to  go  often  in  the  early  evening  to  the  room 
of  a  friend  who  was  in  the  Divinity  School,  I  there  heard  a  young 
man  who  was  making  notes  to  Parsons  on  Contracts  talk  about 
law.  He  was  generally  eating  his  supper  at  the  time,  standing  up 
in  front  of  the  fire  and  eating  with  good  appetite  a  bowl  of  brown 
bread  and  milk.  I  was  a  mere  boy,  only  eighteen  years  old ;  but 
it  was  given  to  me  to  understand  that  I  was  listening  to  a  man  of 
genius. 

In  the  year  1870,  I  recalled  the  remarkable  character  of  that 
young  man's  expositions,  sought  him  in  New  York,  and  induced 

(i)  Speech  at  the  dinner  of  the  Harvard  Law  School  Association, 
Nov.  5,  1886. 


ELIOT  AND  LANGDELL.  361 

him  to  become  Dane  Professor.  So  he  became  Professor  Lang- 
dell.  He  then  told  me,  in  1870,  a  great  many  of  the  things  he  has 
told  you  this  afternoon :  I  have  heard  most  of  his  speech  before. 
He  told  me  that  law  was  a  science :  I  was  quite  prepared  to  believe 
it.  He  told  me  that  the  way  to  study  a  science  was  to  go  to  the 
original  sources.  I  knew  that  was  true,  for  I  had  been  brought 
up  in  the  science  of  chemistry  myself  ;  and  one  of  the  first  rules  of 
a  conscientious  student  of  science  is  never  to  take  a  fact  or  a 
principle  out  of  second  hand  treatises,  but  to  go  to  the  original 
memoir  of  the  discoverer  of  that  fact  or  principle. 

Himself  a  scientific  man,  it  was  natural  that  President  Eliot 
should  be  attracted  by  one  who  undertook  the  task  to  which  he 
was  invited,  with  the  conviction  "that  law  is  not  only  a  science, 
but  one  of  the  greatest  and  noblest  of  sciences,  there  is  and  can 
be  no  dispute.  That  it  is  a  science  with  which  the  most  vital  inter- 
ests of  the  public  and  the  State  are  closely  bound  up  is  equally 
beyond  dispute.  ...  A  Law  School  which  does  not  profess 
and  endeavor  to  teach  law  as  a  science  has  no  reason  for  exist- 
ence.''^) 

The  theory  on  which  President  Eliot  made  the  selection  of  the 
new  Professor  was  well  stated  by  Langdell  himself,  sixteen  years 
later.  (2) 

I  wish  to  emphasize  the  fact  that  a  teacher  of  law  should  be 
a  person  who  accompanies  his  pupils  on  a  road  which  is  new  to 
them,  but  with  which  he  is  well  acquainted  from  having  often 
travelled  it  before.  What  qualifies  a  person,  therefore,  to  teach  law- 
is  not  experience  in  the  work  of  a  lawyer's  office,  not  experience 
in  dealing  with  men,  not  experience  in  the  trial  or  argument  of 
causes — not  experience,  in  short,  in  using  law,  but  experience  in 
learning  law ;  not  the  experience  of  the  Roman  advocate  or  of 
the  Roman  praetor,  still  less  of  the  Roman  procurator,  but  the 
experience  of  the  jurisconsult. 

President  Eliot,  in  later  years,  stated  his  own  theory  as  fol- 
lows (3)  : 

The  teachers  who  administer  this  system  must  be  men  who 
possess  large  and  systematic  knowledge  of  law,  sound  judgment, 
enthusiasm,  and  the  power  of  clear  exposition ;  but  they  need  not 
have  been  eminent  at  the  bar  or  on  the  bench.  It  has  but  seldom 


(1)  See  Annual  Report  of  Dean  Langdel!  for  1880-81. 

(2)  Speech   of    Dean    Langdell    at    the    dinner    of    the    Harvard    Law 
School  Association,  Nov.  5,  1886. 

(3)  President's  Annual  Report  for  1881-82. 


362  HARVARD  LAW  SCHOOL. 

happened  that  the  same  man  achieved  eminence  both  in  practice 
and  as  a  teacher.  In  short,  the  teaching  of  law  is  a  difficult  and 
honorable  profession  in  itself  and  cannot  often  be  combined  with, 
or  late  in  life  taken  up  in  exchange  for,  the  practice  of  law, 
another  absorbing  profession  which  appeals  to  different  motives, 
develops  different  qualities,  and  holds  out  different  rewards. 

i 

Such  views  as  these  were  not  readily  accepted  by  the  lawyers 
of  the  day ;  nor  was  Eliot's  opinion  that  a  lawyer  had  seldom 
attained  eminence  both  in  practice  and  as  a  teacher,  considered 
accurate. 

Furthermore,  the  great  body  of  lawyers  did  not  regard  law  as 
a  science,  in  the  sense  in  which  Langdell  used  that  term. 

As  President  Eliot  said,  in  1891(1)  :  I  remember  to  have  heard 
a  very  eminent  member  of  the  Boston  Bar  say  in  the  Board  of 
Overseers  once,  'The  College  stands  for  philosophy,  for  literature, 
for  humanities,  for  the  progress  of  mankind ;  as  to  the  Law 
School,  the  Medical  School,  they  are  bread  and  butter.'  " 

Consequently  considerable  opposition  to  the  choice  of  the  Cor- 
poration developed  in  the  Board  of  Overseers,  but  when  it  was 
found  that  prominent  New  York  lawyers,  like  James  C.  Carter, 
heartily  endorsed  Langdell,  his  election  was  finally  confirmed. 

So  modest  a  man  was  Langdell,  however,  that  when  asked  by 
members  of  the  governing  Boards,  who  knew  nothing  about  him, 
for  the  names  of  New  York  lawyers  who  might  answer  inquiries 
as  to  his  qualifications,  he  declined  to  comply  with  their  request ; 
and  he  further  refused  to  meet  a  number  of  the  Overseers  at 
dinner,  being  unwilling  to  appear  to  take  any  steps  to  influence 
his  own  election.  (2) 

Professor  Langdell  entered  upon  his  duties  at  the  beginning 
of  the  second  term,  February  21,  1870.  As  Professor  Washburn 
was  to  be  absent  in  Europe,  his  place  was  supplied  by  the  appoint- 
ment of  several  prominent  practising  lawyers  to  act  as  Lecturers ; 
Otis  P.  Lord,  Judge  of  the  Massachusetts  Supreme  Court  (who 
declined  the  appointment)  ;  John  C.  Gray,  Jr.,  a  graduate  of  the 
College  in  1859,  and  a  Law  School  student,  186062 ;  Charles  S. 
Bradley,  the  distinguished  Chief  Justice  of  Rhode  Island,  a  Law 
School  student  of  1840-41 ;  Edmund  H.  Bennett,  a  Law  School 


(1)  Speech   at   the   dinner   of   the   Harvard   Law   School    Association, 
June  23,  1891. 

(2)  Professor  James  Barr  Ames  is  authority  for  the  above. 


ELIOT  AND  LANGDELL.  363 

student  of  1851,  a  noted  law  writer,  and  then  Judge  of  the  Pro- 
bate Court  for  Bristol  County.  ( i ) 

During  this  term,  Professor  Holmes  lectured  on  Equity  Plead- 
ing and  Domestic  Relations ;  Professor  Langdell,  on  Negotiable 
Paper  and  Partnership ;  Judge  Bradley,  on  Real  Property ;  Judge 
Bennett,  on  Criminal  Law,  and  Wills  and  Administrations ;  Mr. 
Gray,  on  Bankruptcy  and  Jurisprudence  of  the  United  States. 
The  system  of  instruction  continued  much  as  in  previous  years. 
Fifteen  Moot  Courts  were  held  by  Professors  Langdell,  Holmes 
and  Judge  Bradley.  Written  opinions  were  delivered  three  times, 
once  before  Professor  Holmes  and  twice  before  Professor  Lang- 
dell. Four  exercises  in  Pleading  were  given  out  by  Professor 
Holmes  during  the  term.  Professor  Langdell  also  gave  out  exer- 
cises in  Pleading  and  forms  relating  to  Negotiable  Paper,  in  con- 
nection with  his  lectures  on  that  subject.  The  number  of  students 
during  the  first  term  was  one  hundred  and  twenty-two ;  during 
the  second  term  one  hundred  and  sixteen. 

While  no  change  had  been  brought  about  in  the  system  of  in- 
struction in  the  Law  School  during  Eliot's  first  year  as  President, 
there  were  signs  of  the  approach  of  a  new  regime.  One  of  these 
may  be  told  in  the  President's  own  words : 

Formerly  it  was  not  the  custom  for  the  President  of  Harvard 
College  to  have  anything  to  do  with  the  Professional  Schools.  I 
remember  the  first  time  I  went  into  Dane  Hall  after  I  was  elected 
President.  It  was  in  the  autumn  of  1869,  a  few  weeks  after  the 
term  began.  I  knocked  at  a  door  which  many  of  us  remember, 
the  first  door  on  the  right  after  going  through  the  outside  door 
of  the  Hall,  and,  entering,  received  the  usual  salutation  of  the  ever 
genial  Governor  \Vashburn,  "Oh,  how  are  you  ?  Take  a  chair," — 
this  without  looking  at  me  at  all.  When  he  saw  who  it  was,  he 
held  up  both  his  hands  with  his  favorite  gesture,  and  said,  "I 
declare.  I  never  before  saw  a  President  of  Harvard  College  in 
this  building !"  Then  and  there  I  took  a  lesson  under  one  of  the 
kindest  and  most  sympathetic  of  teachers.  (2) 


(1)  Lord  and   Gray  were  appointed  Dec.  24,   1869;   Bradley,  Jan.    14, 
1870;  Bennett,  Jan.  28,  1870.     By  vote  of  the  Corporation,  Aug.  20,  1870, 
they  received  as  compensation:  Bradley,  $810;  Bennett,  $540;  Gray,  $540. 

(2)  Professor  Washburn's  statement  was  not  absolutely  accurate;  for 
in  the  Harvard  College  Archives  is  to  be  found  a  note  from  Washburn 
to  President  Felton,  written  in  January,  1861,  showing  that  a  visit  to  the 
Law  School  was  at  least  contemplated  by  the  President. 

"Dear  Pres. 

You  intimated  a  wish  to  be  present  at  my  closing  lecture.  Of  course 
I  should  be  honored  and  gratified  by  such  a  presence.  But  there  is  no 
arrangement  for  either  of  the  other  Professors  to  be  present.  Still  if 


364  HARVARD  LAW  SCHOOL. 

The  first  warning  of  the  impending  revolution  appeared  in  the 
Circular  of  the  School  issued  for  the  second  term  of  the  academic 
year  1869-70,  which  contained  the  following  sentence :  "The 
Faculty  reserve  the  right  of  basing  their  recommendations  for  a 
degree  upon  a  final  examination." 

This  announcement  was  made  after  the  adoption  by  the  Corpor- 
ation April  8,  1870,  of  a  new  revision  of  the  Statutes  and  Laws 
of  the  University,  which  included  the  following  statute : 

12.  The  ordinary  degrees  of  Bachelor  of  Arts,  Master  of 
Arts,  Bachelor  of  Science,  Bachelor  of  Divinity,  Bachelor  of 
Laws,  Doctor  of  Medicine  and  Doctor  of  Dental  Medicine,  are 
conferred  after  recommendation  by  the  several  faculties,  by  vote 
of  the  Corporation  with  the  concurrence  of  the  Overseers.  It  is 
required  that  no  candidate  for  these  degrees  be  recommended 
except  after  thorough  public  examination. 

To  this  was  added  a  proviso  that  this  statute  was  not  to  affect 
the  Law  School  degrees  before  Commencement  of  1871. 

Although  these  statutes  were  not  agreed  to  by  the  Overseers 
until  some  time  later,  the  announcement  in  the  Law  School  Cir- 
cular of  a  possible  requirement  of  an  examination  for  a  degree  of 
LL.  B.,  came  upon  the  public  as  an  innovation  of  a  most  startling 
character.  ( i ) 

Hitherto,  as  has  been  already  pointed  out,  the  degree  was  con- 
ferred on  students  who  had  attended  the  School  a  certain  number 
of  terms.  It  was  frequently  conferred  after  the  student  had 
severed  his  connection  with  the  School.  In  its  character  it  had 
been  little  more  than  a  "certificate  of  residence,  with  such  promise 
of  legal  attainments  as  the  responsiveness  of  the  individual  to  the 
enthusiasm  of  his  instructors  might  afford."  (2) 


you  are  entirely  at  liberty  to  be  bored  for  half  an  hour  and  will  call  at 
my  rooms  say  five  minutes  after  twelve  to-day,  I  shall  be  most  happy  to 
attend  you  into  the  Hall  and  do  what  I  can  to  bore  you.  And  should  be 
glad  to  have  you  show  yourself  there  as  the  head  of  the  Law  Faculty, 
that  the  School  may  go  away  with  sentiments  of  more  profound  respect 
for  that  August  Body  than  either  of  its  members  or  lower  extremities  are 
able  to  inspire." 

See  Harv.  Coll.  Papers,  2nd  Series,  Vol.  XXVIII. 

(1)  The  first  Law  School  to  require  examination  for  a  degree  appears 
to  have  been  the  St   Louis  Law  School,  founded  in  1867.     See  Green  Bag, 
Vol.  I  (1889), 

(2)  President  Eliot's  Inaugural  Address. 

See  also  President  Eliot's  Administration;  by  Charles  F.  Dunbar,  Harv. 
Grad.  Mag.,  Vol.  II. 


ELIOT  AND  LANGDELL.  365 

At  the  opening  of  the  year  1870-71,  the  Circular  of  the  School 
disclosed  the  full  extent  of  the  astonishing  changes  proposed — 
both  in  the  course  and  method  of  instruction  and  in  the  require- 
ment for  degrees. 

A  system  of  prescribed  and  elective  studies  was  initiated ;  and 
the  degree  of  LL.  B.  was  to  be  conferred  only  on  students  who 
had  passed  the  required  examinations.  The  Circular  stated  that : 

(1)  the  course  of  study  would  thereafter  comprise  the  subjects 
therein  enumerated. 

(2)  that  seven  of  those  subjects,  being  such  as  were  deemed 
fundamental  and  elementary,  would  be  required,  and  that  the  re- 
mainder would  be  elective ; 

(3)  that  all  the  required  studies,  and  as  many  as  practicable  of 
the  elective  studies,  would  be  taught  every  year,  but  that  no 
student  would  be  expected  to  pursue  in  any  one  year  all  the  sub- 
jects taught  in  the  School  in  that  year. 

The  course  was  as  follows — Required  Studies :  Real  Property, 
Personal  Property,  Contracts,  Torts,  Criminal  Law  and  Criminal 
Procedure,  Civil  Procedure  at  Common  Law,  Evidence ;  Elective 
Studies:  (Commercial  Law)  Sales  of  Personal  Property,  Bail- 
ments, Agency  Negotiable  Paper,  Partnership,  Shipping  including 
Jurisdiction  and  Procedure  in  Admiralty,  Insurance;  (Equity, 
Real  Property  and  Kindred  Subjects)  Real  Property  Evidence, 
Jurisdiction  and  Procedure  in  Equity,  Principal  and  Surety,  in- 
cluding Guaranty,  Domestic  Relations,  Marriage  and  Divorce, 
Wills  and  Administration,  Corporations,  Conflict  of  Laws,  Con- 
stitutional Law,  Debtor  and  Creditor,  including  Bankruptcy. 

The  degree  of  LL.  B.  will  be  conferred  upon  students  who 
shall  pass  satisfactory  examinations  in  all  the  required  subjects 
and  in  at  least  seven  of  the  elective  subjects,  after  having  been  in 
the  School  not  less  than  one  year.  The  intention  is,  that  the  seven 
required  subjects  should  occupy  the  student  fully  during  one 
year ;  the  seven  electives  are  meant  to  fill  a  second  year.  The  re- 
quired studies  are  designed  to  serve  as  an  introduction  to  the 
electives.  Equivalents  will  be  accepted  from  students  who  offer 
themselves  for  examination  upon  subjects  which  they  have 
studied  elsewhere.  Students  who  are  not  candidates  for  a  degree 
can  avail  themselves  of  the  advantages  of  the  School  to  whatever 
extent  they  see  fit.  ... 

The  examinations  for  a  degree  will  be  of  a  thorough  and 
searching  character ;  but  will  be  limited  in  scope  to  the  ground 
covered  by  the  instruction  given  in  the  School  in  the  several  sub- 
jects. 


366  HARVARD  LAW  SCHOOL. 

While  this  great  change  did  not  meet  with  universal  approba- 
tion, the  general  feeling  among  lawyers  was  that  it  was  a  wise 
move.  ( i ) 

The  Visiting  Committee  reported  at  the  same  time  to  the  Over- 
seers, through  Francis  E.  Parker,  Chairman : 

That  in  the  discharge  of  their  duty,  they  have,  by  committees 
of  their  number,  visited  the  School  and  attended  its  exercises. 
They  have  also,  in  their  own  meetings,  and  in  conference  with  the 
President  of  the  University,  considered  and  discussed  the  pros- 
pects and  needs  of  the  School  and  the  various  plans  suggested  for 
increasing  its  usefulness.  Several  of  the  suggestions  which  they 
had  intended  to  make  have  been  anticipated  by  the  action  of  the 
Law  Faculty  and  of  the  Corporation,  especially  that  of  procuring 
courses  of  lectures  and  instruction  by  gentlemen  eminent  in  the 
active  practice  of  the  profession,  from  which  the  committee  ex- 
pect excellent  results. 

They  are  happy  in  being  able  to  report  generally  that  the  School 
is  animated  with  an  excellent  spirit,  and  that  both  what  it  is  now 
doing,  and  what  it  promises  for  the  next  years,  is  encouraging 
and  satisfactory. 

The  committee  also  wish  to  express  the  opinion  that  the  system 
of  oral  recitations,  formerly  in  use,  might  with  advantage  be  re- 
stored. It  has  seemed  to  them  that  a  system  of  lectures,  not  as- 
sisted and  enforced  by  recitations,  is  defective  in  theory,  and  not 
satisfactory  in  practice.  The  committee  are  happy  to  observe 
that  systematic  instruction  in  pleading,  with  written  exercises, 
has  been  introduced,  and  they  think  that  similar  instruction,  to 
some  extent,  in  drawing  other  legal  papers,  might  be  of  practical 
advantage. 

This    and    other    criticisms    elicited    from    ex-Professor    Joel 


(i)  The  American  Law  Review,  Vol.  V,  Oct.,  1870,  said: 
"For  a  long  time  the  condition  of  the  Harvard  Law  School  has  been 
almost  a  disgrace  to  the  Commonwealth  of  Massachusetts.  We  say  "al- 
most a  disgrace,'  because,  undoubtedly,  some  of  its  courses  of  lectures 
have  been  good,  and  no  law  school  of  which  this  can  be  said  is  hope- 
lessly bad.  Still,  a  school  which  undertook  to  confer  degrees  without 
any  preliminary  examination  whatever,  was  doing  something  every  year 
to  injure  the  profession  throughout  the  country,  and  to  discourage  real 
students.  So  long  as  the  possession  of  a  degree  signified  nothing  except 
a  residence  for  a  certain  period  in  Cambridge  or  Boston,  it  was  without 
value.  The  lapse  of  time  insured  its  acquisition.  Just  as  a  certain 
number  of  dinners  entitled  a  man  in  England  to  a  call  to  the  bar,  so  a 
certain  number  of  months  in  Cambridge  entited  him  to  a  degree  of 
Bachelor  of  Laws.  So  long  as  this  state  of  things  continued  it  was 
evident  that  the  School  was  not  properly  performing  its  function.  We 
arc  glad  to  learn,  therefore,  that  the  old  system  has  been  abandoned,  and 
are  glad  to  find  convincing  evidence  of  the  fact  in  a  circular  just  issued 
by  the  Faculty." 


ELIOT  AND  LANGDELL.  367 

Parker  the  vigorous,  sarcastic,  and  spicy  written  answer,  pre- 
viously referred  to(i),  an  elaborate  pamphlet  giving  the  history 
of  the  School  and  warmly  defending  the  previous  administration 
of  its  affairs. 

As  to  the  method  of  instruction  advocated  by  the  Committee  he 
said: 

The  mode  of  instruction  adopted  by  the  Litchfield  School  was 
well  adapted  to  the  time  when  it  was  instituted  and  attained  its 
greatest  success.  But  the  multiplication  of  text-books  and  digests, 
in  the  half-century  which  succeeded,  had  rendered  it  inappropri- 
ate. It  was  no  longer  the  business  of  students  to  make  manuscript 
texts  and  digests  for  themselves.  The  multiplication  of  decisions 
rendered  it  impracticable  to  collect  and  explain  all,  or  even  the 
most  important  of  them,  and  an  attempt  to  follow  that  course 
would  have  been  not  merely  unwise,  but  positively  pernicious. 
While  it  answered  well  in  the  age  when  cases  were  comparatively 
few,  when  Mansfield  and  Ashhurst,  Buller  and  Grose  had  just 
been  settling  in  a  court  of  law  some  of  the  great  principles  which 
lie  at  the  foundation  of  commercial  jurisprudence,  and  those 
principles  had  not  been  traced  into  their  minute  ramifications, — 
it  would  now,  in  my  opinion,  with  the  immense  addition  of  cases 
and  arguments  which  the  books  furnish,  fill  the  mind  of  the  stu- 
dent with  a  mass  of  material  which  he  may  readily  find  elsewhere 
when  he  has  occasion  for  it, — which,  if  he  were  to  attempt  to 
memorize  it  in  the  School, — however  he  might  classify  it, — he 
could  never  readily  apply  to  the  infinite  variety  of  human  transac- 
tions in  the  minute  variations  which  might  present  themselves  in 
his  practice;  and  if  he  did  not  become  merely  a  "case  lawyer",  as 
those  are  called  who  have  only  a  recollection  of  cases,  he  would 
be,  at  best,  a  digest  of  matter  which  he  could  not  apply  with  the 


(i)     The  Law  School  of  Harvard  College,  by  Joel  Parker   (1871). 

As  to  this  pamphlet,  the  New  York  Nation  said,  March  16,  1871,  Vol. 
XII: 

"Judge  Parker  is  a  man  widely  known  in  the  profession  and  in  the 
country  at  large,  as  well  as  among  his  old  pupils,  not  only  for  his  legal 
abilities  and  attainments,  but  also  for  his  sincere  enjoyment  of  a  good 
fight.  .  .  .  The  truth  of  the  matter  would  seem  to  be  that  each  party 
to  this  dispute  .  .  .  has  on  his  side  some  right,  that  each  has  plenty 
of  good  intentions,  and  that  each  may  be  well  enough  content  to  let  the 
matter  rest  as  it  is.  ...  The  Harvard  Law  School  has,  ever  since 
its  foundation,  done  excellent  work,  highly  creditable  to  its  teachers  and 
scholars,  that  it  has  been  so  far  from  being  a  disgrace  to  Massachusetts 
as  to  have  been  an  honor  to  the  State  and  of  service  to  the 
profession  throughout  the  whole  country,  that  its  degrees,  if  they  were 
given  without  examination,  were  nevertheless  carried  away  by  men  who 
had.  on  the  whole,  studied  well.  ...  On  the  other  hand,  it  is  true  too 
that  the  School  can  do  something  and  will,  it  is  highly  probable,  do 
something  under  the  changed  system,  not  only  to  increase  its  efficiency, 
but  to  helo  en  the  cause  of  sound  education  in  the  United  States." 


368  HARVARD  LAW  SCHOOL. 

necessary  facility.  No  small  part  of  the  education  of  the  legal 
student  is  to  learn  how  to  study, — to  learn  that  the  law,  as  a 
whole,  is,  necessarily,  a  mass  of  principles  and  rules  applicable 
to  various  interests,  rights,  obligations,  and  duties,  many  of  which 
relate  to  a  single  branch  of  those  interests  or  rights, — as  the  prin- 
ciples which  govern  the  acquisition,  possession,  and  transfer  of 
real  estate,  the  law  which  regulates  the  rights  and  duties  of  Prin- 
cipal and  Agent,  and  the  law  of  Bills  of  Exchange ;  while  other 
principles  and  rules  have  a  much  wider  application ;  that  in  rela- 
tion to  these  last,  it  is  often  a  most  difficult  inquiry  to  ascertain 
which  of  different  principles  governs  a  particular  case ;  and  that 
there  are,  besides,  distinctions  continually  presenting  themselves 
requiring  a  very  nice  and  accurate  discrimination. 

But  1  am  not  writing  a  treatise  on  the  study  of  the  law,  my 
object  being,  merely,  to  justify,  if  I  may,  that  course  of  instruc- 
tion which  leads  the  student  to  the  acquisition  of  a  knowledge  of 
the  great  principles  which  lie  at  the  foundation  of  jurisprudence, 
— to  an  investigation  of  the  relations  of  the  different  principles  to 
each  other, — and  to  their  practical  application, — instead  of  a 
course  which  leads  to  the  collection  of  a  large  number  of  legal 
propositions,  and  to  a  digest  of  cases.  .  .  . 

Recitations,  however  well  adapted  to  the  education  of  children, 
and  even  to  young  men  in  the  Academic  department,  and  however 
perfect  they  may  be,  will  not  make  lawyers.  That  they  may  be 
used  to  some  extent  is  not  to  be  doubted, — but  they  should  be 
auxiliary,  and  not  principal. 

Neither  will  lecturers  make  lawyers.  But  it  is  more  important 
that  the  Instructor  should  tell  the  students  of  a  Law  School  what 
he  knows  which  is  not  contained  in  the  text-books,  than  that 
they  should  tell  him  what  they  know  is  to  be  found  there.  .  .  . 

To  an  attack  on  the  School's  past  administration  and  to  an  in- 
dorsement by  the  American  Lazv  Review  of  the  institution  of  ex- 
aminations for  the  degree,  he  replied: 

With  the  exception  of  the  requisition  of  a  certain  term  of 
study,  the  degree  is  honorary,  and  has  been  so  understood  by 
those  conversant  with  the  rule.  It  did  not  admit  to  the  Bar,  unless 
there  was  in  some  State,  legislation  to  that  effect,  and  in  such  case 
the  fair  presumption  was  that  the  act  was  passed  with  knowledge 
of  the  requirements  of  the  School,  and  with  a  design  to  induce 
candidates  for  the  profession  to  avail  themselves  of  advantages 
for  the  acquisition  of  legal  knowledge,  greater  than  they  would 
have  by  the  general  course  of  admission. 

Generally,  however,  where  provisions  exist  by  which  the  degree 
operates  as  an  admission  to  the  Bar,  they  are  limited  to  the  school 
or  schools  of  the  State,  and  intended  for  the  encouragement  of 
such  schools,  and  in  such  cases  as  there  is  no  examination  for  ad- 


ELIOT  AND  LANGDELL.  369 

mission  to  the  Bar,  it  is  quite  proper  that  one  should  precede  the 
degree. 

But  in  the  absence  of  legislation  giving  to  the  degree  the  effect 
of  admission,  the  degrees  of  a  law  school  differ  materially  from 
the  ordinary  degrees  of  the  Academic  department.  There  the 
study  for  a  term  of  years  is  not  for  the  purpose  of  qualifying  the 
student  for  a  particular  vocation,  to  enter  which  he  must  pass  a 
subsequent  examination,  on  his  college  studies,  by  another  author- 
ity. Whereas  that  is  emphatically  true  of  the  student  in  the  Law 
School,  if  he  is  required  to  pass  an  examination  for  his  degree, 
and  another  for  his  admission  to  the  Bar, — one  for  the  honor, 
another  for  the  practical  result.  He  may  like  it.  If  so,  there  can 
be  no  reasonable  objection. 

The  tendency  of  legislation  for  many  years  past  has  been  to 
give  admission  to  the  Bar  to  all  citizens  of  the  State,  twenty-one 
years  of  age,  and  of  good  moral  character.  Such  is,  by  statute, 
the  rule  in  some  of  the  States,  compulsory  on  the  courts.  No 
novitiate,  whatever,  is  required. 

With  such  legislation,  and  such  tendencies,  if  it  is  not  the  duty 
of  the  law  schools  to  throw  open  wide  their  doors,  and  entice  all 
who  can  be  induced  to  come  in  and  avail  themselves  of  their  ad- 
vantages,— offering  the  honors  of  the  school,  on  time,  without 
further  examination  respecting  acquisitions,  it  is  certainly  not  an 
offence,  to  do  so.  Great  benefit  must  result.  A  young  man  cannot 
well  breathe  the  atmosphere  of  an  active  school  without  learning 
something  of  the  law.  As  a  general  rule,  parties  induced  to  join 
in  order  to  obtain  the  degree,  whether  with  or  without  examina- 
tion, will  understand  their  own  interest,  and  labor  accordingly. 
Idleness  and  negligence  will  be  the  exception.  Examination  as  a 
requisite  for  the  degree  must  have  a  tendency  to  repel  those  whose 
previous  limited  education  renders  them  doubtful  whether  they 
shall  be  able  to  acquit  themselves  satisfactorily,  under  such  a  test ; 
and  these  are  the  very  ones  it  is  desirable  to  reach.  Some  of 
them, — I  think  I  may  say  the  greater  portion  of  the  earnest  ones, 
— are  quite  as  likely  to  avail  themselves  fully  of  the  advantages 
which  they  possess,  to  use  what  they  acquire,  in  the  further  pur- 
suit of  professional  knowledge,  and  in  the  successful  practice  of 
the  profession,  as  those  who  are  anxious  to  be  examined  to  obtain 
the  diploma.  There  were  from  time  to  time  ten,  twelve,  fourteen 
attorneys  at  law,  in  the  School,  desirous  to  obtain  the  degree. 
How  many  of  them  would  have  come  to  be  examined  for  it  can- 
not be  known.  .  .  . 

For  these  and  other  reasons,  I  have  been  satisfied  of  the  wisdom 
of  the  learned  men  whose  policy  invited  as  many  as  would,  to 
come  and  share  the  advantages  of  the  School, — to  acquire  the 
knowledge  how  study  should  be  pursued,  and  investigations  made, 
and  principles  applied ;  and  how  distinctions  show  differences 
leading  to  varied  results, — rather  than  to  memorize  an  indefinite 
number  of  legal  principles,  which  dozens  of  text-books  at  the 

24 


370  HARVARD  LAW  SCHOOL. 

present  day  will  furnish  them,  and  which  therefore  they  can  com- 
mit to  memory  more  thoroughly  in  the  early  days  of  their  pro- 
fessional life.  A  young  man  may  make  himself  a  very  respectable 
digest  of  legal  propositions  with  a  very  limited  knowledge  of  the 
reasons  why  they  exist,  and  of  the  methods  of  their  use. 

The  knowledge  of  forms,  and  of  their  practical  application,  is 
best  acquired  in  an  office. 

Thus  much  for  the  libel  in  the  Law  Review. 

The  year  1870-71  opened  with  154  students,  an  increase  of  34 
over  the  number  at  the  beginning  of  1869-70.  During  the  year 
165  students  were  in  the  School,  of  whom  102  remained  through 
the  year,  the  average  for  the  year  being  136. 

The  experiment  of  appointing  Lecturers  "who  are  engaged  in 
the  active  practice  of  the  profession",  was  continued;  Edmund 
H.  Bennett,  Charles  S.  Bradley,  and  Nicholas  St.  John  Green 
were  chosen  by  the  Corporation.  Mr.  Green,  the  new  Lecturer, 
was  a  graduate  of  the  College  in  1851,  of  the  Law  School  in  1853, 
and  was  then  practising  law  in  Boston,  with  considerable  experi- 
ence in  criminal  law. (i) 

On  September  27,  1870,  the  arrival  of  the  new  regime  was 
further  marked  by  the  first  recorded  formal  meeting  of  the  Law 
School  Faculty.  At  this  meeting,  held  in  the  President's  office, 
there  were  present : 

President  Eliot  (in  the  chair)  and  Professors  Washburn, 
Holmes  and  Langdell.  The  records,  in  Langdell's  handwriting, 
show  that  but  two  matters  of  business  were  transacted.  The  first 
was  of  supreme  importance, — the  election  of  Langdell  as  Dean. 

(i)  The  American  Law  Review,  in  the  article  previously  quoted,  said 
of  these  Lecturers  and  of  the  Professors : 

"The  learning  and  ability  of  these  gentlemen  warrant  us  in  predicting 
that  their  labors  will  make  the  H.  L.  S.  what  it  ought  to  be.  What  it 
ought  to  be  we  find  well  expressed  in  a  late  report  of  Dr.  E.  O.  Haven  to 
the  trustees  of  the  North  Western  University.  "The  object  of  a  law 
department  is  not  precisely  and  only  to  educate  young  men  to  be  prac- 
tising lawyers,  though  it  will  be  largely  used  for  that  purpose.  It  is  to 
furnish  all  students  who  desire  it,  the  same  facilities  to  investigate  the 
science  of  human  law  theoretically,  historically  and  thoroughly  as  they 
have  to  investigate  mathematics,  natural  science  or  .any  other  branch  of 
thought. 

In  these  words  the  Review  set  forth  almost  exactly  the  ideal  which 
Eliot  and  Langdell  had  in  their  minds. 

Bennett  and  Bradley  were  appointed  June  10,  1870,  and  Green,  April  29, 
1870,  to  serve  during  the  academic  year,  1870-71. 

The  salaries  of  the  Professors  and  Lecturers  were  fixed  by  vote  of 
the  Corporation,  Nov.  25,  1870,  as  follows : 

Professors  Washburn  and  Holmes,  $4,000  each ;  Professor  Langdell, 
$3,800,  with  the  use  of  rooms  over  the  Steward's  office;  Judge  Bradley, 
$1,500;  Judge  Bennett,  $500;  Mr.  Green,  $1,000. 


ELIOT  AND  LANGDELL.  371 

This  move  had  been  in  President  Eliot's  mind  from  the  beginning 
— ever  since  the  election  of  Langdell  as  Dane  Professor.  It 
came,  however,  as  a  shock  of  surprise  to  those  interested  in  the 
School,  to  the  students  and  Professors,  that  a  comparatively  young 
man  of  forty-three  years,  of  slight  practise  at  the  Bar  and  of  only 
six  months  experience  in  teaching,  should  be  made  Dean  over  the 
heads  of  his  older  and  more  distinguished  associates.  ( I ) 

The  second  action  of  the  Faculty  as  recorded  by  Langdell  was 
as  follows: 

"At  the  suggestion  of  the  President,  the  Faculty  then  pro- 
ceeded to  consider  the  subject  of  a  Tabular  View  for  the  first 
half  of  the  academic  year." 

Previously,  and  for  many  years,  the  course  of  study  had  ex- 
tended through  two  years,  but  it  was  only  taught  once  during  that 
time,  i.  e.  one  half  of  the  course  was  taught  one  year,  and  the 
other  half  the  next  year.  Hence  the  School  was  not  divided  into 
classes  for  purposes  of  instruction,  but  the  same  instruction  was 
given  to  all ;  and  although  a  student  entering  the  School  at  any 
time,  and  remaining  two  years,  would  go  through  the  whole 
course,  yet  the  order  in  which  he  would  do  it  depended  entirely 
upon  the  time  of  his  entering.  This,  however,  was  subject  to  one 
modification,  namely :  it  being  considered  necessary  for  the  stu- 
dent to  begin  his  studies  by  reading  Blackstone's  Commentaries 
and  Kent's  Commentaries,  or  one  of  them,  lectures  were  delivered 


(i)  This  election  of  a  Dean  was  another  result  of  the  new  Statutes  un- 
der which  all  the  Professional  Schools  of  the  University  were  made  organ- 
ized departments  of  the  University  much  more  formally  than  under  the 
previous  Statutes  and  Laws  of  1848. 

Under  the  new  Statutes  a  regular  Dean  was  to  be  head  of  the  Law 
Faculty,  instead  of  the  Senior  Professor  as  hitherto.  This  was  brought 
about  by  Statutes  6  and  7  and  15,  as  follows: 

6.  "Each  College  and  School  of  the  University  is  under  the  direction 
of  a  Faculty,  the  members  of  which  are  designated  by  the  Corporation. 
Each   Faculty   has   the   general   control   of  the   studies   and   discipline   of 
its    College    or    School    and    of    the    conditions   of   admission    thereto ;    it 
has  authority  to  make  all  orders  and  regulations  necessary  to  the  exercise 
of   this   control    subject   to   the    revision   of   the    Corporation;    and    it    is 
expected    to    propose    to    the    Corporation    any   changes    in    the    Statutes 
which  it  may  deem  desirable. 

7.  The  Faculty  of  each  Professional  School  elects  a  Dean,  whose  duty 
it  is  to  keep  the  Records  of  the  Faculty,  to  prepare  its  business  and  to 
preside  at  its  meetings  in  the  absence  of  the  President. 

15.  The  Faculties  have  authority  to  impose  fines  for  damages  done 
to  property;  to  inflict  at  their  discretion  the  penalties  of  admonition,  sus- 
pension and  expulsion ;  and  to  use  all  other  appropriate  means 
of  discipline;  provided  that  no  student  be  separated  from  the  University 
either  temporarily  or  permanently  by  a  vote  of  less  than  two-thirds  of  the 
members  of  his  Faculty  present  and  voting.  .  .  . 


372  HARVARD  LAW  SCHOOL. 

each  term  on  one  of  those  works,  for  the  benefit  of  such  students 
as  had  just  entered  the  School  without  previous  study. 

Although  the  method  of  instruction  was  stated  in  the  Cata- 
logue for  1870-71  in  much  the  same  terms  as  in  the  Catalogues 
for  the  previous  forty  years : 

Instruction  will  be  given  in  recitations ;  by  lectures  and  exposi- 
tion; by  moot  courts,  by  cases  assigned  to  students  for  written 
and  oral  opinions  and  by  exercises  in  drawing  pleading  at  com- 
mon law  and  in  equity. 

there  was,  however,  one  short  sentence  in  both  the  Circular 
and  the  new  Catalogue  which  contained  the  seed  of  the  great  revo- 
lution about  to  occur  in  the  mode  of  teaching  law : 

Each  instructor  will  adopt  such  mode  of  teaching  the  subjects 
of  which  he  has  charge  as  in  his  judgment  will  best  advance  the 
pupil  in  his  course. 

In  these  few  modest  words  was  first  heralded  the  birth  of  the 
Langdell  Case  System. 

At  the  very  opening  of  the  fall  term,  a  rumor  had  spread  abroad 
that  the  new  Professor  had  an  entirely  new  plan  of  teaching.  It 
was  known  that,  during  the  previous  spring,  he  had  been  collect- 
ing cases  for  some  kind  of  a  book,  and  that  the  advance  sheets 
were  to  be  ready  for  his  first  lecture.  Hence  there  was  consider- 
able curiosity  excited,  and  practically  the  whole  School  attended 
Langdell's  first  lecture. 

The  scene  is  thus  graphically  pictured  by  Samuel  F.  Batchelder 
(L.  S.  1895-98)  in  his  sketch  of  Langdell (i)  : 

The  day  came  for  its  first  trial.  The  class  gathered  in  the  old 
amphitheatre  of  Dane  Hall — the  one  lecture  room  of  the  School — 
and  opened  their  strange  new  pamphlets,  reports  bereft  of  their 
only  useful  part,  the  head-notes !  The  lecturer  opened  his. 

"Mr.  Fox,  will  you  state  the  facts  in  the  case  of  Payne  v. 
Cave?" 

Mr.  Fox  did  his  best  with  the  facts  of  the  case. 

"Mr.  Rawle,  will  you  give  the  plaintiff's  argument?" 

Mr.  Rawle  gave  what  he  could  of  the  plaintiff's  argument. 

"Mr.  Adams,  do  you  agree  with  that  ?" 

And  the  case-system  of  teaching  law  had  begun.     .     .     . 

Consider  the  man's  courage.     .     .     . 

Langdell  was  experimenting  in  darkness  absolute  save  for  his 

(i)     See  Green  Bag,  Vol.  XVIII,   (1906). 


ELIOT  AND  LANGDELL.  373 

own  mental  illumination.  He  had  no  prestige,  no  assistants,  no 
precedents,  the  slenderest  of  apparatus,  and  for  the  most  part  an 
unpromising  corpus  vile.  He  was  the  David  facing  a  complacent 
Goliath  of  unshaken  legal  tradition,  reinforced  by  social  and 
literary  prejudice.  His  attempts  were  met  with  the  open  hostility, 
if  not  of  the  other  instructors,  certainly  of  the  bulk  of  the 
students.  His  first  lectures  were  followed  by  impromptu  indig- 
nation meetings. — "What  do  we  care  whether  Myers  agrees  with 
the  case,  or  what  Fessenden  thinks  of  the  dissenting  opinion? 
What  we  want  to  know  is :  What's  the  law  ?" 

Did  the  new  lecturer  himself  know  the  law?  He  apparently 
took  back  in  one  lecture  what  he  had  said  in  the  last.  Young 
Warner,  a  keen  logician  (and  one  of  the  first  converts  to  the  new 
system)  cornered  him  squarely  one  day,  amidst  a  hurricane  of 
derisive  clapping  and  stamping.  Would  it  be  believed,  "the  old 
crank"  went  back  to  the  same  point  next  day  and  worked  it  out 
all  over  again !  Most  of  the  classes  could  see  nothing  in  his 
system  but  mental  confusion  and  social  humiliation.  They  began 
to  drop  away  fast. 

That  the  new  system  of  teaching  was  at  first  unpopular,  there 
can  be  no  question.  Before  the  end  of  the  first  term,  Langdell's 
class  had  greatly  dwindled,  and,  in  fact,  it  is  said  that  for  some 
time  it  was  reduced  to  seven  devoted  men,  (of  whom,  James  Barr 
Ames  (L.  S.  1870-73)  was  one)  who  went  by  the  name  of  "Kit's 
Freshmen"  or  "Langdell's  Freshmen." 

These  men,  however,  discerned  that  there  was  something  here 
better  than  text  book  and  lectures,  and  stuck  to  the  ship. 

They  were  finding  out  how  the  law  was  made,  and  the  reasons 
for  it,  and  how  it  was  applied  in  actual  practice.  The  lecturer 
was  working  it  out  for  himself  with  them.  Every  step  of  the 
reasoning  was  scrutinized  and  tested  and  re-examined  till  proved 
right  or  wrong.  The  law  was  being  taught  as  a  science,  not  as 
a  rag  bag  of  rules  and  exceptions.  In  the  happy  phrase  of  Pro- 
fessor Gray,  the  language  of  the  law  was  being  taught,  not  from 
the  artificial  grammar,  but  from  the  natural  translation.  The  rest 
of  the  class  were  apparently  hoping  for  a  quick  arrival  of  the 
millennium,  when  "the  law,"  being  fully  "known,"  there  would  be 
no  need  of  cases  in  the  courts  to  decide  it.  ...  The  old  pro- 
fessors called  wholly  for  definitions  and  rules : — "When  and  by 
what  statute  were  lands  made  alienable  in  England  after  the  con- 
quest?" "What  is  the  difference  between  an  action  of  trespass 
and  an  action  of  trespass  upon  the  case?"  The  new  Dean  pre- 
sented actual  problems  for  solution : — "If  A  contract  with  B  to 
serve  him  one  year  at  so  much  per  month,  and  at  the  end  of  six 
month's  service  he  dies,  will  his  representatives  be  entitled  to 
recover  against  B  for  the  six  month's  service;  and  if  so.  how 


374  HARVARD  LAW  SCHOOL. 

much  and  upon  what  principle?" — "If  a  debtor  tender  to  his 
creditor  the  amount  of  the  debt  on  the  day  it  becomes  due,  and 
the  creditor  refuse  to  receive  it,  and  afterwards  sue  the  debtor, 
how  should  the  latter  defend  himself?" 

Dismay  filled  the  School.  What  chance  now  of  learning  what 
the  law  was?(i) 

Dean  Langdell  himself  has  thus  set  forth  the  principles  on 
which  his  system  was  based (2)  : 

First,  that  law  is  a  science;  secondly,  that  all  the  available 
materials  of  that  science  are  contained  in  printed  books.  If  law 
be  not  a  science,  a  university  will  best  consult  its  own  dignity  in 
declining  to  teach  it.  If  it  be  not  a  science,  it  is  a  species  of 
handicraft,  and  may  best  be  learned  by  serving  an  apprenticeship 
to  one  who  practices  it.  If  it  be  a  science,  it  will  scarcely  be  dis- 
puted that  it  is  one  of  the  greatest  and  most  difficult  of  sciences, 
and  that  it  needs  all  the  light  that  the  most  enlightened  seat  of 
learning  can  throw  upon  it.  Again,  law  can  be  learned  and  taught 
in  a  university  by  means  of  printed  books.  If,  therefore,  there  are 
other  and  better  means  of  teaching  and  learning  law  than  printed 
books,  or  if  printed  books  can  only  be  used  to  the  best  advantage 
in  connection  with  other  means, — for  instance,  the  work  of  a  law- 
yer's office,  or  attendance  upon  the  proceedings  of  courts  of  jus- 
tice,— it  must  be  confessed  that  such  means  cannot  be  provided  by 
a  university.  But  if  printed  books  are  the  ultimate  sources  of  all 
legal  knowledge ;  if  every  student  who  would  obtain  any  mastery 
of  law  as  a  science  must  resort  to  these  ultimate  sources ;  and  if 
the  only  assistance  which  it  is  possible  for  the  learner  to  receive 
is  such  as  can  be  afforded  by  teachers  who  have  travelled  the 
same  road  before  him, — then  a  university,  and  a  university  alone, 
can  furnish  every  possible  facility  for  teaching  and  learning  law. 

Of  the  design  and  scope  of  his  revolutionary  case  book,  which 
was  published  in  October,  1871,  under  the  title  of  A  Selection 
of  Cases  on  the  Law  of  Contracts,  zvith  a  Summary  of  the  Topics 
covered  by  the  Cases  no  better  description  can  be  given  than  that 
contained  in  its  preface,  and  Langdell's  own  words  should  be  read 
in  full. 

No  other  of  the  Professors  was  yet  convinced  that  any  depart- 
ure from  the  old  methods  of  instruction  was  necessary  or  desir- 
able ;  and  they  continued  to  use  the  text  books. 

(i)     Green  Bag,  Vol.  XVIII. 

(a)  See  Speech  of  Prof.  Langdell,  at  the  Meeting  of  the  Harvard 
Law  School  Association,  on  Law  School  Day  of  the  Commemoration  of 
the  25Oth  anniversary  of  the  Founding  of  Harvard  College,  November 
5,  1886. 

For  full  account  of  the  Case  System,  see  Chapter  XLIII  infra. 


ELIOT  AND  LANGDELL.  375 

The  courses  given  during  the  year  1870-71  were  as  follows : 
Professor  Washburn  lectured  twice  a  week  on  Real  Property, 
giving  a  required  course  for  beginners,  and  an  elective  course 
for  more  advanced  students ;  and  he  lectured  twice  a  week  during 
the  year  upon  each  course ;  on  Wills  and  Administrations  he  lec- 
tured once  a  week  during  the  last  half  of  the  year.  Professor 
Holmes  lectured  twice  a  week  for  half  the  year  on  Jurisdiction 
and  Procedure  in  Equity,  Agency,  Corporations,  and  twice  a 
week  for  the  latter  half  of  the  year  on  Bailments  and  Conflict  of 
Laws.  Professor  Langdell's  courses  were  on  Contracts,  Sales  of 
Personal  Property,  and  Civil  Procedure  at  Common  Law ;  and 
were  thus  described  by  him  in  his  report  as  Dean : 

In  each  of  the  two  former  subjects  he  used  as  a  text-book  a 
selection  of  cases  which  he  had  prepared  for  the  purpose.  Upon 
these  cases  he  had  three  exercises  a  week  during  the  year,  con- 
sisting of  lecture  and  recitation  combined.  It  was  an  important 
incidental  object  of  these  exercises  to  teach  Procedure,  so  far  as 
it  was  involved  in  the  cases  which  were  the  subject  of  the  exer- 
cises. At  the  beginning  of  the  year  it  had  not  been  decided  in 
what  manner  Procedure  should  be  taught,  except  as  stated  above ; 
but  immediately  after  the  Christmas  recess  the  practice  was  be- 
gun of  giving  out  cases  in  Pleading,  each  case  containing  a  state- 
ment of  facts,  and  four  counsel  being  assigned,  two  on  a  side,  to 
plead  against  each  other  on  those  facts  until  they  came  to  an 
issue  of  law  or  fact,  when  the  case  would  be  ready  for  a  hearing 
and  decision.  For  the  purpose  of  hearing  and  deciding  such 
cases  as  were  ready,  Professor  Langdell  held  a  court  each  Friday 
afternoon,  at  three  o'clock.  This  practice  was  continued  through 
the  year.  No  account  was  kept  of  the  number  of  cases  given 
out,  but  the  practice  was  to  give  out  a  case  to  any  four  students 
who  applied  for  one,  or  if  they  chose  they  could  get  up  a  case  for 
themselves.  The  number  of  cases  heard  at  each  sitting  varied 
from  one  to  three  and  four.  A  week  seldom  passed  without  some- 
thing being  ready. 

Judge  Bradley  lectured  once  a  week  on  Evidence,  giving  a 
required  course  for  beginners,  and  an  elective  course  for  more 
advanced  students.  Judge  Bennett  lectured  on  Criminal  Law  and 
Criminal  Procedure,  once  a  week.  Mr.  Green's  lectures  were  on 
Torts,  twice  a  week.  Moot  Courts  were  held  once  a  week  during 
the  year,  each  of  the  three  Professors  sitting  in  turn.  During  the 
year,  five  cases  were  given  out  for  written  opinions,  two  each  by 
Professors  Washburn  and  Holmes,  and  one  by  Professor  Lang- 
dell.  Professor  Holmes  gave  out  two  cases  in  Equity  Pleading, 


376  HARVARD  LAW  SCHOOL. 

the  whole  School,  or  as  many  as  chose,  drawing  a  bill,  answer, 
or  other  pleading,  as  the  case  might  be,  upon  the  facts  given  out, 
and  handing  it  in  to  the  Professor. 

It  is  interesting  to  note  that  instruction  in  the  Law  of  Torts  was 
given  for  the  first  time,  as  a  separate  branch  of  law,  and  also 
that  it  was  regarded  as  a  radical  move.  "We  are  inclined  to  think 
that  Torts  is  not  a  proper  subject  for  a  law  book,"  said  the 
American  La^v  Review  (Vol.  V)  : 

Under  this  title  we  expect  to  find  some  or  all  of  the  wrongs 
remedied  by  the  action  of  trespass,  trespass  on  the  case  and 
trover.  But  we  cannot  help  believing  that  the  cohesion  or  legal 
relationship,  say  of  trespass  quare  clausum,  is  closer  with  the 
duties  to  him  in  possession  enforced  by  real  actions  than  with 
assault  and  battery.  So,  to  give  another  example,  the  law  of 
action  for  deceit  seems  to  us  to  be  properly  presented  in  connec- 
tion with  that  of  estoppels  in  pais,  as  two  forms  of  sanction  for 
the  same  duty — not  to  defraud  one's  neighbors  to  put  it  broadly. 
Seduction,  which  we  find  in  the  next  chapter  of  this  book,  belongs 
at  the  other  end  of  the  corpus  juris. 

We  long  for  the  day  when  we  may  see  these  subjects  treated 
by  a  writer  capable  of  dealing  with  them  philosophically  and  self- 
sacrificing  enough  to  write  a  treatise  as  if  it  were  an  integral  part 
of  a  commentary  on  the  entire  body  of  the  law.  Such  a  result 
might  be  anticipated,  if  the  able  lecturer,  for  whose  use  the 
abridgment,  was  prepared,  and  who  is  achieving  so  deserved  a 
success  at  Cambridge,  should  apply  his  subtle  and  patient  intellect 
to  the  task. 

One  other  change  to  be  noted  during  Langdell's  first  year  was 
the  abolition  of  prize  essays  and  the  establishment  of  scholarships 
for  the  first  time  in  the  School,  under  the  following  vote  of  the 
Corporation,  October  28,  1870: 

On  recommendation  of  the  Law  Faculty (i) 

Voted  to  discontinue  the  offering  of  prizes  for  dissertations 
in  the  Law  School. 

Voted  to  establish  in  the  Law  School  four  University  schol- 
arships of  the  annual  value  of  $100,  upon  conditions  hereafter  to 
be  determined. 


(i)     See  vote  of  Law  Faculty  Oct.  24,  1870. 

On  Nov.  8,  1875,  the  Corporation  increased  the  value  of  the  Bussey 
Scholarships  to  $150  each,  and  passed  the  following  vote,  Dec.  13: 

"Whereas,  no  formal  vote  has  ever  been  passed  establishing  Bussey 
Scholarship  in  the  Law  School,  Bussey  Scholars  have  been  appointed  for 
several  years.  Voted,  that  there  be  established  in  the  Law  School  four 
scholarships  to  be  called  Bussey  Scholarships,  each  with  an  annual  in- 
come equal  to  the  regular  tuition  fee  of  the  School." 


ELIOT  AND  LANGDELL.  377 

Toward  the  end  of  the  spring  term,  the  law  students  began  to 
prepare  for  the  new  and  dreaded  ordeal  of  examinations.  By 
vote  of  the  Law  Faculty  June  7,  1871  "every  student  must  desig- 
nate seven  elective  subjects  and  only  seven,  on  which  he  will  be 
examined."  The  first  written  examinations  from  printed  exam- 
ination papers  ever  held  in  the  School  occurred  June  14-22,  1871, 
in  Harvard  Hall,  Massachusetts  Hall  and  Dane  Hall.  The  Re- 
port of  the  Visiting  Committee  in  October,  1871,  thus  stated  the 
method  of  examination  : 

Printed  questions  were  submitted  in  June  to  the  candidates, 
covering  all  the  principal  topics  of  Law  and  Equity.  These  ques- 
tions they  were  required  to  answer  in  writing ;  the  answers  being 
written  in  the  presence  of  some  member  of  the  faculty,  without 
consultation  with  other  persons  or  with  books. 

The  examinations  occupied  six  days,  and  judging  by  the  ques- 
tions and  by  such  of  the  written  answers  as  have  been  inspected 
by  the  committee,  it  was  an  honest  and  thorough  test  of  the 
acquirements  of  the  student.  .  .  .  The  Committee  consider 
the  system  a  substantial  advance  in  legal  education. 

In  conclusion  the  Committee  repeat  the  expression  of  their 
satisfaction  at  the  general  conditions  of  the  School.  There  is 
evidence  of  industry,  animation  and  progress  which  cannot  but 
show  itself  in  the  future  career  of  the  students  and  in  the  reputa- 
tion of  this  Department  of  the  University.  They  have  found  the 
general  condition  of  the  School  very  satisfactory,  showing  evi- 
dence of  activity  and  interest  both  on  the  part  of  the  Profes- 
sors and  of  the  students.  The  experiment  of  introducing  as 
Lecturers  gentlemen  in  the  active  practice  of  the  profession  has 
been  tried  on  a  somewhat  extended  scale  and  no  doubts  are  now 
expressed  of  its  success.  Instruction  in  pleading  has  been  intro- 


A  change  in  the  method  of  assigning  scholarships  was  voted  hy  the 
Corporation  April  19,  1886: 

"Voted,  on  recommendation  of  the  Faculty  of  the  Law  School,  to  alter 
the  existing  practice  as  to  assignment  of  scholarship  in  the  Law  School 
by  the  adoption  of  the  following  rule : 

A  limited  number  of  scholarships  of  the  annual  value  of  $150  each  will 
be  hereafter  awarded  to  meritorious  students  standing  in  need  of  such 
assistance,  who  have  been  in  the  School  one  full  year  .at  least,  and  who 
intend  to  remain  in  the  School  another  full  year  at  least.  The  award 
will  be  made  by  the  Corporation  at  the  recommendation  of  the  Faculty 
at  the  beginning  of  each  academic  year.  One  third  of  the  annual  value 
of  the  scholarship  is  paid  on  the  loth  of  October  following  the  award, 
one  third  on  the  I2th  of  January  and  one-third  on  the  I2th  of  April. 

Application  for  the  scholarships  must  be  made  in  writing  to  the  Dean 
by  the  first  of  June.  In  making  the  award  a  preference  will  be  given  to 
members  of  the  third  year  class ;  and  no  scholarship  will  be  granted  to 
a  member  of  the  second  year  class  unless  he  intends  to  remain  in  the 
School  until  he  completes  his  course." 


378  HARVARD  LAW  SCHOOL. 

duced  in  a  new  form  by  exercises  in  the  nature  of  Moot  Courts 
in  which  students  have  shown  great  interest. 

The  number  of  candidates  examined  was  35,  of  whom  all  were 
rejected.  The  number  of  students  recommended  for  the  degree 
of  LL.B.  at  the  end  of  the  year  was  77,  of  whom  53  had  complied 
with  the  requisitions  of  the  old  system,  and  24  with  those  of  the 
new. 


CHAPTER  XLII. 
THE  TRIAL  PERIOD  1871-1881. 

At  the  end  of  the  academic  year,  1870-71,  the  Faculty,  acting 
largely  on  Professor  Langdell's  initiative,  took  the  next  step  in 
revolutionizing  American  legal  education. 

Firm  in  his  belief  that  law  was  a  science,  to  be  taught  as  such 
and  to  be  learned  as  such,  Langdell  was  equally  convinced  that 
no  student  could  receive  a  proper  legal  education  in  so  short  a 
period  as  eighteen  months.  The  successful  administration  of 
Langdell's  own  method  of  teaching  certainly  required  a  longer 
period.  The  year's  experience  had  proved  to  the  Law  Faculty 
also  that  the  existing  regulations  were  defective  in  the  following 
particulars:  I.  that  they  tempted  students  to  try  the  experiment 
of  doing  two  year's  work  in  one ;  2.  that  the  course  of  study 
which  should  be  required  of  every  student,  as  fundamental,  was 
too  extensive  to  be  gone  through  within  one  year,  and  ought  to 
occupy  not  less  than  two  years,  and  hence,  that  a  course  of  study 
extending  through  only  two  years  was  not  compatible  with  an 
elective  system ;  3.  that  an  elective  system  required  a  larger 
force  of  instructors  than  the  School  could  then  command. 

With  a  view  to  remedying  these  evils,  the  Circular  for  1871-72 
announced ;  first,  that  the  prescribed  course  of  study  would 
extend  through  two  years;  second,  that  it  would  comprise  only 
such  branches  of  law  as  were  deemed  fundamental,  and  also  of 
sufficient  importance  to  require  separate  and  systematic  study  and 
instruction,  namely :  i.  Real  Property.  2.  Contracts.  3.  Torts. 
4.  Criminal  Law,  and  Criminal  Precedure.  5.  Civil  Procedure 
at  Common  Law.  6.  Evidence.  7.  Jurisdiction  and  Procedure 
in  Equity ;  third,  that  the  entire  course  would  be  taught  every 
year,  so  that  students  entering  the  School  at  the  beginning  of  any 
year  could  begin  the  course  and  complete  it  in  two  years ;  fourth, 
that  during  the  year  1871-72  seven  specified  subjects  would  be 
taught  in  addition  to  the  prescribed  course — Constitutional  Law, 
Sales  of  Personal  Property,  Bailments,  Marine  Insurance,  Cor- 
porations, Shipping  and  Admiralty,  and  Conflict  of  Laws. 

The   scheme  was  put  into  effect  under  a  vote  of  the  Law 


HARVARD  LAW  SCHOOL. 

Faculty,  passed  on  motion  of  Professor  Washburn,  at  its  third 
meeting,  March  28,  1871  : 

Resolved,  that  a  course  of  study  be  adopted  to  extend  over 
two  years  and  embrace  only  fundamental  subjects,  all  to  be  pre- 
scribed, and  to  constitute  the  subjects  of  examination  for  a  de- 
gree. 

In  accordance  with  this  vote  a  course  of  study  for  the  next 
year  1871-72  was  drawn  up  and  submitted  to  the  Corporation, 
It  was  referred  to  the  President  and  George  T.  Bigelow,  April  14, 
1871,  and  their  report  upon  the  conditions  proposed  for  the  degree 
of  LL.  B.  was  adopted  by  the  Corporation,  April  28 : 

The  degree  of  Bachelor  of  Laws  will  be  conferred  upon 
students,  who,  having  been  in  the  School  during  the  whole  course 
of  two  years,  shall  have  passed  satisfactory  examinations  at  the 
end  of  each  year  in  the  prescribed  studies  of  that  year;  and  also 
upon  those  who,  having  been  admitted  one  year  in  advance,  shall 
have  been  in  the  School  one  year,  and  have  passed  a  satisfactory 
examination  in  the  prescribed  studies  of  the  second  year,  at  the 
end  of  the  year.  At  the  beginning  of  the  academic  year  1871-72, 
students  will  be  admitted  to  advanced  standing  upon  satisfactory 
evidence  in  writing  that  they  have  diligently  devoted  at  least  one 
full  year  to  legal  study,  exclusive  of  any  other  occupation.  After 
the  academic  year  1871-72,  such  admission  to  advanced  standing 
will  be  allowed  only  upon  an  examination  which  will  be  held  at 
the  beginning  of  the  academic  year  and  will  require  of  the  candi- 
date a  thorough  knowledge  of  the  following  books :  Washburn 
on  Real  Property;  Langdell's  Select  Cases  on  Contracts  Vol  I ; 
Addison  on  Torts,  Abridged;  Blackstone's  Commentaries,  Book 
4 ;  Stephens  on  Pleading,  including  the  introduction. 

Of  the  change  in  the  plan  of  instruction,  President  Eliot  said, 
in  his  Annual  Report  for  1870-71 : 

Instruction  is  now  given  every  year  in  all  the  prescribed  studies 
of  the  two  years'  course,  just  as  in  the  College  the  course  of  each 
of  the  four  years  is  taught  every  year.  This  is  a  change  greatly 
for  the  better.  It  is  now  possible  for  a  student  entering  at  the 
beginning  of  any  year  to  pursue  his  studies  in  a  natural  order, 
adopted  with  a  single  view  to  the  student's  best  progress.  The 
increase  of  the  teaching  force,  by  the  employment  of  Lecturers 
who  are  engaged  in  the  actual  practice  of  the  profession,  has 
made  this  improvement  possible.  The  former  system  was  only 
justified  by  poverty  and  the  convenient  though  unsound  theory 
that  there  is  neither  beginning  not  end  to  the  Law,  neither  funda- 
mental principle  nor  natural  development. 


TRIAL  PERIOD  1871-1881.  381 

A  Law  School  which  tries  to  do  thorough  work  in  this  country 
has  to  contend  with  two  traditions  which  still  have  an  extraordi- 
nary force.  The  notion  prevails  that  the  way  to  learn  Law  is  to 
go  into  a  lawyer's  office,  see  the  outside  of  his  business,  copy 
papers  for  him,  and  read  his  books  in  the  intervals  of  other  em- 
ployments. ( i )  .  .  . 

A  young  man  should  go  into  a  lawyer's  office  after,  and  not 
before,  he  has  been  through  a  Law  School,  and  even  then  not  in 
the  attitude  of  a  student,  but  as  an  assistant  or  junior  partner. 

The  second  tradition  with  which  Law  Schools  have  to  contend 
finds  expression  in  the  phrase  "reading  Law."  The  idea  conveyed 
by  this  phrase  is  that  Law  is  to  be  learned  by  reading  treatises 
and  reports,  the  implication  being  that  guidance  and  systematic 
instruction  are  superrlous.  Now  it  would  be  hard  to  mention  any 
subject  in  which  the  precept  and  example  of  a  good  teacher  and 
thorough  scholar  can  be  of  so  much  service  to  the  student  as  in 
Law.  Law  is  emphatically  a  science,  with  a  method  and  a  his- 
tory; it  has  a  language  of  its  own,  and  a  voluminous  literature. 
The  student  needs  direction  as  to  the  order  of  his  studies ;  he 
needs,  from  day  to  day,  guidance  in  selecting  the  raw  material  on 
which  to  expend  his  labor ;  he  needs  to  be  supplied  with  general 
criteria  for  discriminating  between  truth  and  error,  between 
things  essential  and  things  adventitious;  he  needs  to  be  shown 
how  to  disentangle  principles  from  masses  of  encumbering  detail ; 
he  needs  to  have  the  legal  mode  of  thinking  and  reasoning  exem- 

(i)     President  Eliot  continued: 

"This  notion  comes  to  us  from  the  attorney's  office  in  England.  It 
never  ought  to  have  had  much  force  in  this  country,  where  there  is  no 
distinct  class  of  attorneys,  particularly  when  it  is  question  of  how  to 
train  advocates  or  counsel,  not  attorneys.  The  business  of  an  English  at- 
torney may  doubtless  be  learned  by  much  practice  under  supervi- 
sion, just  as  any  sort  of  trade  or  empirical  business  may  be.  English 
barristers  have  never  been  trained  in  attorney's  offices.  The  English 
barrister  who  makes  a  specialty  of  conveyancing  or  of  drawing  pleadings 
for  attorneys  not  unfrequently  keeps  a  small  Law  School,  and  makes  a 
considerable  part  of  his  income  by  teaching  students  to  draw  pleadings 
for  a  fee  of  one  hundred  pounds  a  year  from  each  student.  In  England 
itself  this  private  method  of  training  young  men  to  the  Law  is  obsoles- 
cent. In  this  country,  the  more  successful  a  lawyer  is,  the  less  he  is  in- 
clined to  spend  time  and  thought  in  training  inexperienced  students.  To 
teach  is  not  considered  a  part  of  his  professional  business.  The  mere  be- 
ginner can  get  little  help  from  the  lawyer  into  whose  office  he  goes,  un- 
less the  lawyer  is  a  young  man  or  an  unsuccessful  man  who  has  abundant 
leisure,  and  even  then  the  chances  are  that  the  amateur  teacher  will  be  in- 
ferior to  the  professional  teachers  in  a  Law  School.  A  busy  lawyer  can- 
not be  of  much  service  to  a  student  unless  the  student  is  capable  of  serv- 
ing him.  When  a  young  man  has  thoroughly  mastered  at  a  good  school 
the  principles  and  methods  of  the  Law, — when  he  has  become  familiar  with 
law  books  and  has  learned  how  to  investigate  and  prepare  a  case,  how 
to  find  precedents  and  how  to  use  them, — he  is  ready  to  be  of  some  ser- 
vice in  a  lawyer's  office ;  he  can  do  work  of  a  higher  grade  than  that  of  a 
copyist,  and  the  more  he  can  be  trusted  to  go  alone  the  more  serviceable 
he  will  be,  the  more  he  will  profit  by  his  experience  as  a  subordinate,  and 
the  shorter  that  experience  will  be." 


382  HARVARD  LAW  SCHOOL. 

plified  for  him,  and  to  be  exercised  in  it  himself ;  he  needs  to  be 
trained  to  seize  and  insist  upon  the  material  points  of  a  case,  and 
to  use  brevity,  pertinency,  and  consecutiveness  in  speech.  The 
positive  instruction  to  be  received  from  a  superior  mind  well 
versed  in  the  whole  matter  is  of  as  much  value  to  the  student  of 
Law  as  of  any  other  science  or  liberal  art.  Moreover,  the  student 
requires  to  be  personally  drilled  by  reciting,  writing  opinions, 
drawing  pleadings,  and  arguing  cases.  "Reading  Law"  is  there- 
fore an  absurdly  inadequate  description  of  legal  study  wisely 
conducted. 

The  opening  of  the  year  1871-72  was  a  period  of  great  doubt 
among  those  interested  in  the  Law  School. 

In  the  first  place,  there  was  much  criticism  and  even  bitter 
opposition  among  lawyers,  as  well  as  among  the  Law  School  Pro- 
fessors and  University  officials,  over  the  new  Case  System  em- 
ployed by  Professor  Langdell.  Undoubtedly  this  kept  many 
students  from  entering  the  School.  In  the  second  place,  the 
examinations  scared  away  many  to  whom  they  loomed  as  an 
insurmountable  obstacle.  The  lengthening  of  the  course  also  had 
its  effect.  The  increase  in  the  tuition  fee,  now  put  in  force,  was 
another  factor.(i) 

Owing  to  all  these  causes,  the  number  of  students  in  the  School 
during  the  year  was  138,  of  whom  107  remained  during  the  whole 
year,  the  average  being  i2il/2. 

One  greatly  needed  improvement  in  the  Law  School  Building 

(i)  In  1817,  the  tuition  fee  for  Law  School  students  had  been  fixed  at 
$100,  that  being  the  established  fee  at  that  time  paid  by  students  in  law- 
yer's offices  in  Massachusetts.  In  that  year,  the  college  undergraduate  paid 
a  tuition  fee  of  $46  for  the  first  two  years,  and  $64  in  the  last  two  years. 
From  that  date,  however,  the  Law  School  fee  remained  at  $100,  while  the 
College  fee  nearly  trebled,  being  $150  in  1870.  Another  anomaly  in  the 
Law  School  was,  that  a  student  who  remained  in  the  School  only  a  quar- 
ter or  less  fraction  of  a  year  was  charged  for  only  one  quarter  of  a 
year,  while  in  the  undergraduate  department  a  half  year's  tuition  fee  was 
charged  for  a  half  or  any  less  fraction  of  a  year.  In  1870-71,  steps  were 
therefore  taken  towards  bringing  the  fees  in  the  Law  School  to  a  level 
with  those  of  the  College  proper,  it  being  announced  in  the  Circular  for 
that  year,  and  voted  by  the  Corporation  April  28,  1871,  that  the  charge  for 
tuition  thereafter  would  be  one  hundred  and  fifty  dollars  for  the  first 
year,  one  hundred  dollars  for  the  second  year,  and  fifty  dollars  for  any 
subsequent  year.  Also  that  for  half  or  any  less  fraction  of  a  year,  half 
of  a  year's  fee  would  be  charged,  and  for  more  than  a  half  year  the  fee 
for  the  whole  year  would  be  charged.  One  object  of  this  discrimination 
against  students  who  should  remain  but  a  short  time,  was  to  discourage 
the  practice,  which  had  prevailed  to  a  great  extent  for  many  years,  of 
students  entering  the  School  with  the  intention  of  remaining  not  longer 
than  from  one  quarter  of  a  year  to  a  year.  The  result  of  the  first  year's 
experience  of  the  change  was  a  material  increase  in  the  income  of  the 
School,  and  an  improvement  in  the  character  of  the  students.  .  .  . 


TRIAL  PERIOD  1871-1881.  383 

was  made  during  the  summer  of  1871,  brought  about  by  the 
building  of  Mathews  Hall  in  the  College  Yard. 

"As  the  interval  between  Massachusetts  Hall  and  Dane  Hall 
was  not  long  enough  to  receive  so  large  a  building  as  Mr.  Mat- 
thews proposed  to  rect,  in  order  to  enlarge  and  improve  this  site, 
the  Corporation  caused  Dane  Hall  to  be  moved  seventy  feet 
towards  the  south,  and  the  brick  office  connected  with  the  old 
President's  House,  and  occupied  by  the  Steward,  to  be  turned  one 
quarter  round  and  thrust  behind  the  house.  Both  the  buildings 
moved  were  occupied  as  usual  during  the  moving.  .  .  .  The 
Corporation  took  advantage  of  the  moving  of  Dane  Hall  to  sub- 
stitute, on  the  west  front,  a  brick  porch  for  the  painted  wooden 
columns  which,  unfortunately,  neither  looked  nor  lasted  like  mar- 
ble, and  otherwise  to  improve  the  front  of  the  building  and  its 
pediments  and  cornices.  Messrs.  Peabody  and  Stearns  made  the 
necessary  drawings.  In  the  summer  vacation,  the  large  lecture- 
room  of  the  Law  School  was  refurnished  and  put  in  thorough 
order ;  and  two  rooms  in  the  lower  story  were  made  ready  for  use 
as  a  student's  reading  and  conversation  room,  a  portion  of  the 
entry  being  thrown  into  the  westerly  room  so  as  to  gain  useful 
space  and  a  western  window  without  hurting  the  entry.  One  ob- 
ject in  providing  this  reading-room  was  to  prevent  the  Library 
from  being  used  as  an  exchange  or  conversation-room,  as  had 
been  the  habit  of  the  School."(i) 

The  Catalogue  for  1871-72  made  the  following  announcement: 

The  design  of  this  School  is  to  afford  such  training  in  the 
fundamental  principles  of  English  and  American  Law  as  will 
constitute  the  best  preparation  for  the  practice  of  the  profession 
in  any  place  where  that  system  of  law  prevails.  (2) 

The  method  of  instruction  was  stated  as  in  the  last  Catalogue 
and  it  was  also  announced  that : 

Civil  Procedure  at  Common  Law  will  be  taught  by  cases  con- 


(1)  See  President's  Annual  Report  for  1870-71. 

(2)  This  announcement  took  the  place  of  the  old  formula  as  to  the  de- 
sign of  the  School  which  had  appeared  in  catalogues  for  nearly  40  years 
prior  to  1870-71.     (See  Chapter  XXVIII.) 

In  the  Catalogue  for  1870-71  the  following  wording  was  used :  "The  de- 
sign of  the  Law  School  is  to  afford  a  complete  course  of  legal  education 
except  in  matters  of  mere  local  law  and  practice  for  gentlemen  intended 
for  the  bar  in  any  of  the  United  States." 


384  HARVARD  LAW  SCHOOL. 

taining  statement  of  facts,  in  each  of  which  cases  counsel  will  be 
assigned,  two  on  a  side  to  plead  to  issue.  The  issue  will  then  be 
argued  before  the  Professor  and  decided  by  him.  .  .  . 

The  degree  of  Bachelor  of  Laws  will  be  conferred  upon 
students  who,  having  been  in  the  School  during  the  whole  course 
of  two  years,  shall  have  passed  satisfactory  examinations  at  the 
end  of  each  year  in  the  prescribed  studies  of  that  year ;  and  also 
upon  those  who,  having  been  admitted  one  year  in  advance,  shall 
have  been  in  the  School  one  year,  and  have  passed  a  satisfactory 
examination  in  the  prescribed  studies  of  the  second  year  at  the 
end  of  the  year. 

Students  will  be  admitted  to  advanced  standing  upon  satisfac- 
tory evidence  in  writing  that  they  have  diligently  devoted  at  least 
one  full  year  to  legal  study  exclusive  of  any  other  occupation. 

The  system  of  appointment  of  Lecturers  was  continued,  the 
following  being  chosen  by  the  Corporation :  Charles  S.  Bradley 
(May  3,  1871)  ;  John  Lathrop  (April  28,  1871)  ;  Nicholas  St.  J. 
Green  (April  28,  1871);  John  C.  Gray  Jr.  (April  28,  1871); 
Benjamin  F.  Thomas  (April  28,  1872)  in  place  of  George  T. 
Bigelow  (April  28,  1871). 

The  Librarian,  William  A.  Everett,  resigned  September  27, 
1871,  and  Abraham  W.  Stevens  was  appointed  September  29, 
1871,  at  a  salary  of  $1,200. 

Lectures  were  given  as  follows:  by  Professor  Washburn 
twice  a  week  in  two  courses  on  Real  Property,  and  once  a  week 
for  the  first  half  of  the  year  on  Constitutional  Law ;  by  Professor 
Holmes,  twice  a  week  on  Jurisdiction  and  Procedure  in  Equity, 
Evidence,  and  Bailments.  Professor  Langdell  had  three  exer- 
cises a  week  on  Contracts,  and  two  on  Sales,  and  in  Civil  Proced- 
ure at  Common  Law  he  heard  arguments  once  a  week  on  cases 
previously  given  out  and  pleaded  to  issue  by  counsel.  Mr.  Brad- 
ley lectured  on  Corporations  once  a  week  during  half  the  year. 
Mr.  Thomas  delivered  eight  lectures  on  Wills  and  Administra- 
tions. Mr.  Green  lectured  on  Torts  twice  a  week  during  the  year, 
and  on  Criminal  Law  and  Criminal  Procedure  once  a  week  during 
the  year ;  Mr.  Lathrop  lectured  on  Shipping  and  Admiralty  once 
a  week  during  half  the  year ;  and  Mr.  Gray  lectured  on  the  Con- 
flict of  Laws  once  a  week  during  half  the  year. 

During  the  year  twenty-eight  Moot  Courts  were  held,  nine  by 
Professor  Washburn,  ten  by  Professor  Holmes,  and  nine  by  Mr. 
Green.  Three  cases  were  given  out  for  written  opinions,  two  by 
Professor  Washburn,  and  one  by  Professor  Holmes.  Two  cases 


TRIAL  PERIOD  1871-1881.  385 

in  equity  pleading  were  given  out  by  Professor  Holmes,  the 
whole  School,  or  as  many  as  chose,  taking  part,  by  drawing  a  bill, 
answer,  or  other  pleading,  as  the  case  might  be. 

At  the  end  of  the  year,  examinations  were  for  a  second  time 
held,  forty-five  men  being  examined  and  three  rejected.  This 
was  the  first  time  that  the  passing  of  an  examination  at  the  end 
of  the  first  year  in  studies  for  that  year  was  a  requirement  to 
the  receipt  of  a  degree  at  the  end  of  the  second  year.(i)  Forty 
men  were  recommended  for  a  degree,  three  of  whom  were  en- 
titled to  the  degree  upon  time  and  without  examination  in  accord- 
ance with  the  system  in  force  when  they  entered  the  School.  (2) 

Early  in  this  academic  year,  a  novel  question  was  presented  to 
the  Law  Faculty  and  to  the  Corporation,  through  the  filing  of  an 
application  by  a  woman,  Miss  Helen  M.  Sawyer,  for  admittance 
to  the  Law  School  as  a  regular  member.  As  there  was  no  statute 
or  regulation  applying  specifically  to  this  situation,  the  Corpora- 
tion, after  a  full  discussion  September  29,  and  again  October  13, 
1871,  refused  the  application.  (3) 


(1)  The  effect  of  the  new  system  of  examinations  was  explained  by 
the  Dean  in  his  Report  for  1871-72  as  follows: 

"At  the  beginning  of  the  year  now  under  review,  it  became  for  the  first 
time  a  condition  of  being  admitted  to  the  second  year,  for  the  purpose  of 
becoming  a  candidate  for  a  degree  at  the  end  of  the  year,  that  a  student 
should  have  previously  passed  an  examination  in  the  studies  of  the  first 
year.  Accordingly,  at  the  annual  examination  in  June,  1872,  there  were 
twenty-six  applicants  for  examination  in  the  studies  of  the  first  year,  of 
whom  nineteen  passed,  and  seven  failed.  At  the  examination  for  ad- 
vanced standing,  in  September,  1872  (then  held  for  the  first  time),  there 
were  twelve  new  applicants,  of  whom  ten  passed  and  two  failed.  Also 
three  of  those  who  had  failed  in  June  offered  themselves  again  in  Sep- 
tember, and  passed.  Therefore,  at  the  beginning  of  the  year  1872-73,  the 
number  of  those  who  were  entitled  to  become  candidates  for  a  degree  at 
the  end  of  the  year  was  thirty-two.  Of  these,  thirty-one  presented  them- 
selves at  the  end  of  the  year  for  examination  in  the  studies  of  the  second 
year,  and  twenty-eight  of  them  passed  and  received  degrees,  three  being 
rejected.  Degrees  were  also  conferred  upon  two  candidates  who  passed 
their  examination  in  the  studies  of  both  years  at  the  end  of  the  second 
year,  having  been  excused  from  passing  an  examination  for  advanced 
standing  in  the  previous  September,  on  account  of  sickness.  There  were 
thirty  degrees  conferred,  therefore,  and  seven  candidates  in  all  were  re- 
jected; four  in  the  first  year,  and  three  in  the  second. 

At  the  annual  examination  in  1873,  there  were  fifty-six  applicants  for 
examination  in  the  studies  of  the  first  year  (more  than  twice  as  many 
as  in  the  preceding  year),  of  whom  forty-six  passed." 

(2)  By  vote  of  the  Law  Faculty,  June  24,  1872,  70  per  cent,  was  adopted 
as  a  minimum  mark  to  entitle  a  candidate  to  a  degree.    It  also  voted  not  to 
admit  any  person  to  advanced  standing  who  failed  to  pass  in  more  than 
two  of  the  first  year  subjects. 

(3)  Seven  years  later  the  subject  came  up  again;  and  as  the  records 
of  the  Corporation  of  October  7,  1878,  state,  "a  request  for  the  admission 
of  a  woman  to  the  Law  School  was  considered  and  denied." 


386  HARVARD  LAW  SCHOOL. 

The  year  1872-73  was  again  a  year  of  doubt  as  to  the  future 
of  the  Law  School  under  the  new  regime.    The  whole  number  of 
students  connected  with  the  School  during  the  year  was  again- 
far  less  than  in  the  previous  decade,  being  117.     Of  these,  how- 
ever, 109  were  in  the  School  during  the  whole  year. (i) 

In  this  year  the  School  lost  one  of  its  Professors,  Nathaniel 
Holmes  resigning  as  Royall  Professor,  May  6,  1872.  (2)  The  sys- 
tem of  Lecturers  was  again  continued  by  the  reappointment  of 
Judge  Charles  S.  Bradley  (Oct.  9,  1872)  and  John  C.  Gray  Jr. 
(Oct.  28,  1872)  who  divided  between  them  the  work  of  Professor 
Holmes,  the  former  lecturing  on  Equity,  the  latter  on  Evidence ; 
Benjamin  F.  Thomas,  on  the  Law  of  Wills  (April  8,  1872)  ; 
Nicholas  St.  J.  Green  (May  20,  1872),  on  Criminal  Law  and 
Torts. 

Two  new  appointments  of  Lecturers  were  made,  the  first  being 
the  distinguished  ex- Judge  of  the  United  States  Supreme  Court, 
Benjamin  R.  Curtis,  (May  6,  1872),  who  delivered  a  series  of 
lectures  on  Jurisdiction,  Practice,  and  Peculiar  Jurisprudence  of 
the  Courts  of  the  United  States ;  the  second,  Oliver  Wendell 
Holmes  Jr.  (Sept.  24,  1872),  on  Jurisprudence,  Holmes  at  this 
time  having  come  into  prominence  by  his  brilliant  editorial  work 
and  legal  articles  in  the  American  Law  Review. 

The  Librarian,  Abraham  W.  Stevens,  resigned  August  7,  1872 ; 
and  the  present  Librarian,  John  Hines  Arnold,  was  appointed  on 
that  date.  Mr.  Arnold  was  born  in  Portsmouth,  Rhode  Island 


(1)  Dean   Langdell,  in   his  Annual  Report,  maintained   the   following 
optimistic  attitude  towards  these  figures : 

"A  comparison  of  these  figures  with  those  for  the  years  1870-71  and 
1871-72  will  show  in  a  striking  manner  the  effect  of  the  measures  which 
have  been  taken  during  the  last  two  years  to  raise  the  standard  of  the 
School,  and  to  discourage  students  from  entering  with  a  view  to  remain- 
ing only  a  short  time.  Thus,  in  the  year  1870-71  there  were  no  less  than 
fifty-eight  students  who  were  in  the  School  during  part  of  the  year  only; 
in  the  year  1871-72  that  class  of  students  was  reduced  to  thirty-one,  while 
in  the  year  now  under  review  the  reduction  was  in  a  greatly  increased 
proportion.  It  is  only  in  that  class  of  students  that  there  has  been  any 
falling  off  in  numbers ;  those  who  were  in  the  School  during  the  whole 
year  having  numbered  one  hundred  and  seven  in  each  of  the  years  1872- 
73.  So  far  as  regards  receipts  for  tuition,  the  falling  off  in  numbers  has 
been  much  more  than  made  up  by  the  increase  in  the  rate." 

The  same  cheerful  spirit  was  manifested  by  President  Eliot  in  his  An- 
nual Report  for  1872-73,  in  which  he  said  that  the  decided  raising  of  the 
standard  of  the  School  was  like  to  cause  only  a  temporary  loss  of  students, 
and  that  "the  quality  of  the  young  men  who  resort  to  the  School  has 
very  conspicuously  improved  since  1870-71 ;  nearly  two-thirds  of  them, 
this  year,  are  Bachelors  or  Masters  of  Arts;  and  the  atmosphere  of  the 
School  is  full  of  zeal  and  scientific  enthusiasm." 

(2)  Professor  Holmes  died  in  Cambridge,  February  26,  1901. 


Benjamin  R  Curtis 


TRIAL  PERIOD  1871-1881.  387 

April  4,  1839,  was  educated  in  the  public  schools,  the  University 
Grammar  School  at  Providence  and  the  Rhode  Island  State  Nor- 
mal School.  For  eight  years,  he  was  a  teacher  in  various  public 
schools  in  Rhode  Island,  and  for  seven  years,  associated  with 
Joshua  Kendall,  as  a  teacher  in  his  private  school  for  boys  in 
Cambridge.  ( I ) 

The  Dean,  in  his  Annual  Report,  for  the  first  time  stated 
officially  his  theories  as  to  raising  the  standard  of  the  School,  and 
suggested  three  radical  measures — all  of  which  were,  in  later 
years,  carried  into  effect: 

The  experience  of  the  current  year  admonishes  us  that,  with  the 
present  spirit  of  work  in  the  School,  and  with  our  present  organ- 
ization, building,  and  equipment,  one  hundred  and  fifty  students 
is  about  as  many  as  we  can  do  justice  to ;  and  if  the  School  should 
increase  much  beyond  that  number,  I  think  the  question  would 
arise  whether  it  would  not  be  wise  to  take  further  measures  to 
raise  the  standard  at  the  expense  of  numbers.  Much  has  already 
been  done  in  that  direction,  but  I  think  something  more  remains 
to  be  done.  I  beg  leave  to  call  attention  to  three  measures  in 
particular,  for  want  of  some  or  all  of  which  the  School  is  falling 
short  of  what  ought  to  be  its  aim.  First,  requiring  a  good 
academic  education  as  a  condition  of  admission ;  secondly,  abolish- 
ing the  practice  of  admitting  students  to  advanced  standing; 
thirdly,  establishing  a  three  years'  course.  The  adoption  of  any 
one  of  these  measures  would  be  a  great  step  in  advance,  and  the 
adoption  of  them  all  would  enable  us  to  turn  out  a  much  higher 
grade  of  young  lawyers  than  has  hitherto  been  known  in  the 
United  States.  .  .  . 

The  year  1873-74  witnessed  a  gratifying  increase  in  number 
of  students,  the  whole  number  connected  with  the  School  being 
141,  of  whom  I2i  were  in  the  School  during  the  whole  year,  an 
average  of  131,  being  an  increase  of  18  over  the  preceding  year. 

Dean  Langdell,  in  his  Annual  Report,  noted  the  extraordinary 
revolution  brought  about  by  the  various  requirements  as  to  exam- 
inations for  degrees  and  the  giving  of  the  entire  course  of  study 
each  year. 

Formerly,  though  the  School  was  nominally  divided  into  three 
classes,  there  were  no  actual  classes,  the  practical  effect  of  the 
formal  division  being  seen  only  in  assignment  of  counsel  for 
Moot  Court  cases.  A  student  was  placed  in  the  Senior  class  and 
was  entitled  to  be  senior  counsel  in  Moot  Court  cases  if  he  had 


(i)     See  Sketch  in  Harv.  Grad.  Magazine,  Vol.  XI. 


388  HARVARD  LAW  SCHOOL. 

studied  law  two  years  before  entrance  to  the  School  or  if  he  had 
been  admitted  as  attorney  in  some  court  after  one  year's  study. 
Now  the  division  into  classes  had  become  so  effectual  that 
students  of  the  first  year  seldom  attended  courses  of  the  second 
year  and  vice  versa ;  and  "everyone  is  judged  almost  exclusively 
by  the  work  that  he  does  while  in  the  School." 

This  fall  of  1873  witnessed  further  one  of  the  most  important 
innovations  introduced  by  President  Eliot  and  Dean  Langdell — 
the  beginning  of  the  term  of  service  of  James  Barr  Ames,  as 
Assistant  Professor.  Mr.  Ames  was  a  young  man  of  twenty- 
seven  years  of  age,  born  in  Boston,  June  22,  1846,  a  graduate  of 
Harvard  College  in  1868,  and  of  the  Law  School  in  the  preceding 
June,  1872.  In  1871-72,  he  was  Tutor  in  French  and  German  in 
the  College ;  and  in  1872-73,  Instructor  in  History. 

The  appointment  had  been  made  June  2,  1873,  and  was  thus 
referred  to  by  President  Eliot  in  his  Annual  Report  for  1872-73 : 

After  due  deliberation  upon  the  expediency  of  appointing 
a  young  teacher  in  the  Law  School,  the  Corporation  and  Over- 
seers united  in  the  appointment  of  an  Assistant  Professor  of  Law 
in  June  last.  The  gentleman  who  is  to  bear  the  brunt  of  this  new 
experiment  in  the  constitution  of  a  Law  Faculty  has  some  unusual 
qualifications  for  the  place,  for  he  is  not  only  distinguished  as  a 
student,  both  in  College  and  in  the  Law  School,  but  he  has  had 
more  than  two  years'  experience  as  a  teacher  in  the  College ;  the 
experiment  will  therefore  be  tried  under  favorable  conditions. 
It  will  doubtless  prove  that  young  teachers  can  do  very  useful 
work  in  the  Law  School  as  well  as  in  the  College,  the  Scientific 
School,  and  the  Medical  School ;  indeed,  it  would  not  be  surpris- 
ing if  they  could  do  a  portion  of  the  work  of  instruction  better 
than  older  men. 

The  theory  on  which  the  appointment  was  made  was  thus 
described  by  President  Eliot  in  his  Annual  Report  for  1881-82: 

Thus  far,  the  Law  School  has  taken  its  Professors,  with  one 
exception,  from  the  ranks  of  the  active  profession ;  but,  in  the 
increasing  difficulty  of  obtaining  and  retaining  suitable  Professors 
of  that  sort,  it  is  a  satisfaction  to  remember  that  there  is  another 
approved  method  of  procuring  Law  Professors — the  method 
which  the  great  law  schools  of  Continental  Europe  have  followed, 
and  which  has  produced  not  only  great  teachers  but  great  jurists. 
Those  schools  have  selected  young  men  of  mark  who  have  shown 
a  genius  for  law  and  a  desire  for  the  life  of  a  teacher,  and,  having 
carefully  tested  on  probationary  appointment  their  capacity  for 
teaching,  made  them  Professors,  at  an  age  so  early  that  the  whole 


TRIAL  PERIOD  1871-1881.  389 

vigor  of  their  youth  and  prime  could  be  thrown  into  teaching  and 
authorship.  The  Law  School  has  used  this  method  once  with 
conspicuous  success,  and  it  may  be  obliged  to  try  the  method 
again — without,  however,  adopting  it  as  a  policy. 

The  boldness  and  novelty  of  this  venture  was  thus  spoken  of  by 
President  Eliot  in  his  speech  at  the  9th  Annual  Meeting  of  the 
Harvard  Law  School  Association  June  25,  1895,  held  in  honor  of 
Langdell's  twenty-five  years'  service  as  Dean. 

Professor  Langdell  early  advocated  the  appointment,  as  teach- 
ers of  law,  of  young  men  who  had  had  no  experience  whatever 
in  the  active  profession.  What  a  venture  was  that,  gentlemen ; 
what  bold  advice  was  that  for  the  head  of  the  School  to  give! 
This  School  had  never  done  it ;  no  School  had  ever  done  it ;  it  was 
an  absolutely  new  departure  in  our  country  in  the  teaching  of 
law.  I  remember  very  well  how  reluctantly  the  Corporation  and 
the  Board  of  Overseers  consented  to  the  first  experiment  on  this 
point,  namely,  the  appointment  for  a  limited  term  of  five  years  of 
Assistant  Professor  James  Barr  Ames  (prolonged  applause). 
You  may  well  applaud  now,  gentlemen,  when  the  success  of  that 
experiment  has  been  absolutely  assured ;  but  what  was  the  cour- 
age which  first  suggested  the  experiment.  Now  that  experiment, 
too,  has  not  only  been  extended  in  our  own  Law  School  with 
perfect  success  but  it  has  been  adopted  by  various  other  law 
schools  throughout  the  country.  And  what  does  this  mean? 
What  is  to  be  the  ultimate  outcome  of  this  courageous  venture? 
In  due  course,  and  that  is  no  long  term  of  years,  there  will  be 
produced  in  this  country  a  body  of  men  learned  in  the  law  who 
have  never  been  on  the  bench  or  at  the  Bar,  but  who  nevertheless 
hold  position  of  great  weight  and  influence  as  teachers  of  law, 
as  expounders,  systematizers  and  historians.  This,  I  venture  to 
predict,  is  one  of  the  most  far  reaching  changes  in  the  organiza- 
tion of  the  profession  that  has  ever  been  made  in  our  country. 

Only  two  Lecturers  were  appointed,  John  Lathrop,  on  Torts 
(Sept.  29,  1873),  and  John  C.  Gray,  Jr.,  on  Evidence  (July  9, 
1873).  The  Royall  Professorship  was  filled,  December  8,  1873,  by 
appointment  of  James  Bradley  Thayer.  Mr.  Thayer  was  born 
January  15,  1831,  at  Haverhill,  Mass.  He  graduated  from  Har- 
vard in  1852,  studied  in  the  Law  School  1854-56,  where,  in  his 
second  year,  he  won  a  prize  for  an  essay  on  the  Law  of  Eminent 
Domain  which  was  printed  in  the  Laiv  Reporter.  After  his 
admission  to  the  Bar  in  1856,  he  became  known  as  a  young  lawyer 
of  unusually  profound  learning  and  sagacity.  He  wrote  much  for 
legal  magazines  and  edited  several  law  books.  Shortly  before  his 


390  HARVARD  LAW  SCHOOL. 

appointment  in  the  Law  School,  he  had  declined  a  Professorship 
in  the  English  Department  of  the  College. 

The  course  of  instruction  given  was  as  follows  :  Real  Property, 
Criminal  Law  and  Constitutional  Law,  by  Professor  Washburn; 
Torts,  by  Mr.  Lathrop ;  Evidence,  by  Mr.  Gray.  Professor  Lang- 
dell  gave  for  the  first  time  his  course  on  Jurisdiction  and  Pro- 
cedure in  Equity,  and  also  an  advanced  course  on  Contracts. 

Th<  most  important  change,  however,  in  instruction  came 
through  the  new  Assistant  Professor  Ames,  who  adopted  heart 
and  soul  Langdell's  Case  System,  and  gave  instruction  in  Con- 
tracts, Sales  and  Pleading  by  this  method.  Langdell  and  Ames 
also  heard  Pleading  cases,  actually  argued  by  the  students,  once  a 
week. 

Moot  Courts  were  held  as  usual  by  the  Professors,  by  Assistant 
Professor  Ames  and  by  Mr.  Gray. 

The  Visiting  Committee  appointed  by  the  Overseers  for  1873- 
74,  in  their  Report,  adverted  to  the  different  methods  of  instruc- 
tion employed  in  the  School,  describing  them  as  "first,  the  use  of 
text  books  with  commentaries  by  the  Professors  and  looking  up 
by  the  students  of  cases  given  out  as  illustration;  second,  study 
of  compilation  of  cases  arranged  to  show  the  development  of  a 
branch  of  the  law  through  successive  stages." 

The  Report  stated  that  there  was  "a  diversity  of  opinion  in  the 
Committee  as  to  what  the  method  of  instruction  should  be.  The 
wisest  course,  in  view  of  the  high  standard  of  proficiency  attained 
is  to  leave  to  each  Professor  to  teach  by  the  method  he  can  use 
most  effectively." 

The  "high  standard"  of  the  School  was  further  commended, 
noiice  being  taken  of  "the  entire  decorum  in  the  lecture  room 
and  assiduous  taking  of  notes — a  universal  practice  and  as  much 
a  part  of  the  exercise  of  the  lecture  room  as  the  lecture  itself." 

The  Report  then  continued : 

Aside  from  the  earnest  devotion  of  the  Professors  to  their 
work,  undoubtedly  the  most  potent  influence  in  bringing  the 
.School  to  its  present  excellence  is  the  firm  application  of  the  rule 
recently  adopted  (as  to  examination).  The  beneficial  effect  is 
everywhere  seen.  The  young  men  have  a  large  amount  of  work 
to  do  in  a  short  time  and  must  improve  all  their  opportunities. 
.  .  .  The  necessity  of  qualifying  for  its  degree  makes  the  Law 
School,  in  fact  as  well  as  in  name,  a  school  of  professional  discip- 
line for  all  its  graduates. 


TRIAL  PERIOD  1871-1881.  391 

During  the  year  1873,  large  contributions  had  been  made  by 
friends  and  alumni  to  meet  the  losses  sustained  by  Harvard  Col- 
lege through  the  great  Boston  fire  of  November,  1872;  and  it  is 
interesting  to  note  that  in  the  Treasurer's  Report  (December  31, 
1873)  among  the  names  of  the  contributors  appeared  C.  C.  Lang- 
dell  $1,000;  J.  B.  Ames  $50;  C  S.  Bradley  $500;  C.  W.  Eliot 
$1,500. 

On  June  27,  1874,  the  Law  Faculty  voted  to  recommend  to  the 
Corporation  not  to  confer  the  degrees  of  LL.B.  on  students  under 
twenty-one,  and  to  establish  the  requirement  that  a  law  student 
must  be  nineteen  years  of  age  on  admission.  This  was  adopted 
by  the  Corporation  July  13,  1874. (i) 

In  the  year  1874-75,  the  number  of  students  again  increased, 
being  144,  of  which  130  were  in  the  School  during  the  whole  year, 
an  average  of  137. 

The  year  was  noted  for  the  abandonment  of  the  system  of  Lec- 
turers, instruction  being  given  exclusively  by  the  four  resident 
Professors. 

Of  this  change  President  Eliot  said (2)  : 

i 

During  the  past  five  years  the  School  has  had  the  services,  for 
longer  or  shorter  terms,  of  several  gentlemen,  eminently  fitted  to 
teach  the  subjects  upon  which  they  lectured,  who,  though  engaged 
in  practice,  were  willing  to  lay  before  the  students,  in  a  systematic 
way,  some  of  the  condensed  results  of  their  own  study  and  ex- 
perience. The  University  could  not  have  had  the  services  of  more 
eminent  men,  or  of  persons  better  qualified  to  demonstrate  all  the 
good  effects  of  bringing  distinguished  practitioners  into  immed- 
iate contact  with  students  of  law  as  their  instructors  and  ex- 
emplars. Nevertheless,  the  experience  of  these  five  years  has 
convinced  the  Corporation  that  for  the  main  work  of  the  School 
their  reliance  must  be  upon  resident  Professors,  who  make  teach- 
ing their  business,  and  the  welfare  of  the  School  their  chief 
concern.  Because  practitioners  of  medicine  and  surgery  are  the 
best  clinical  teachers  in  a  Medical  School,  it  has  been  too  hastily 
inferred  that  practitioners  would  make  the  best  teachers  of  law ; 
but  the  analogy  is  a  false  one.  Medicine  and  surgery  must  be 
learned,  partly,  it  is  true,  from  books,  but  largely  from  the  bodies 
of  the  sick  and  wounded ;  whereas  law  is  to  be  learned  almost 


(1)  By  vote  of  the  Law   Faculty  also,  the  former  practice  of  giving 
certificates  of  attendance  to  all   students  who  had  been  members  of  the 
School  was  abolished,  and  the  Dean  was  restricted  to  giving  such  certifi- 
cates only  to  persons  who  had  passed  satisfactory  examinations  in  course 
in  one  or  more  subjects. 

See  Dean's  Annual  Report  1875-76,  as  to  the  working  of  this  rule. 

(2)  See  President's  Annual  Report  for  1*57,5-74. 


392  HARVARD  LAW  SCHOOL. 

•exclusively  from  the  books  in  which  its  principles  and  precedents 
are  recorded,  digested,  and  explained.  The  medical  student  must 
spend  a  large  part  of  his  time  in  hospitals ;  but  a  law  student  who 
should  habitually  attend  courts,  except  during  the  short  period 
when  he  is  acquainting  himself  with  office  work  and  practice, 
would  waste  his  time.  The  law  library,  and  not  the  court  or  the 
law  office,  is  the  real  analogue  of  the  hospital.  What  the  medical 
student  needs  from  his  clinical  instructor  is  help  in  studying  the 
sick  and  wounded ;  and  the  very  qualities  which  make  a  man  an 
eminent  physician  or  surgeon,  are  those  which  make  him  a  good 
clinical  teacher.  Moreover,  the  medical  teacher  must  be  a  practi- 
tioner in  order  to  have  cases  to  teach  with.  It  is  far  otherwise  in 
law.  The  successful  practitioner  may  or  may  not  have  the 
knowledge,  tastes,  and  mental  powers  which  go  to  make  a  good 
teacher  of  law,  and  the  chances  are  against  his  having  them.  A 
good  teacher  of  law  in  any  high  sense  must  be  a  thorough  student 
by  nature  and  habit ;  but  it  is  well  understood  that  a  practitioner 
engrossed  in  business  can  hardly  study  any  large  subject  with 
thoroughness,  so  manifold  are  the  questions  brought  in  quick  suc- 
cession to  his  attention.  On  the  other  hand,  there  are  personal 
qualities  of  great  importance  to  success  at  the  bar,  which  are  of 
little  value  in  a  teacher.  It  was  with  these  items  in  mind  that  the 
Corporation,  about  two  years  ago,  determined  to  add  a  young 
Assistant  Professor  to  the  Law  Faculty,  that  they  might  see  if  it 
were  practicable  to  breed  Professors  of  law  by  the  same  gradual 
process  by  which  competent  teachers  are  trained  up  in  other 
departments  of  the  University.  This  interesting  experiment  has 
thus  far  been  perfectly  successful.  The  Corporation,  however, 
do  not  overlook  the  advantage  of  having  some  men  of  large 
experience  in  actual  practice  as  resident  Professors  of  Law.  While 
stating  this  general  conclusion,  at  which  they  have  arrived,  with 
regard  to  appointments  in  the  Law  School,  the  Corporation  grate- 
fully acknowledge  that  they  have  repeatedly  received,  during  the 
past  five  years,  and  particularly  during  the  two  years'  vacancy 
in  the  Royall  Professorship,  invaluable  aid  in  carrying  out,  or 
enriching,  the  programme  of  the  School  from  distinguished  prac- 
titioners who  made  a  personal  sacrifice  for  the  sake  of  serving  the 
School.  It  may  be  permitted  to  mention  the  name  of  one  bene- 
factor of  this  sort, — a  man  whose  recent  death  has  left  a  gap  in 
the  front  rank  of  the  legal  profession  which  is  not  likely  soon  to 
be  filled.  When  it  was  suggested  to  the  late  Benjamin  Robbins 
Curtis  that  a  course  of  lectures  from  him  on  practice  in  the 
United  States  courts  would  be  of  great  service  to  the  School,  he 
immediately  replied  that  he  felt  indebted  to  the  School  for  the 
service  it  had  rendered  him  in  his  youth,  and  that,  though  much 
occupied,  he  would  give  the  desired  lectures  in  testimony  of  his 
gratitude.  In  1872-73,  he  delivered  an  admirable  course  of  lec- 
tures on  the  Jurisdiction,  Practice,  and  Peculiar  Jurisprudence  of 
the  Courts  of  the  United  States,  and  when  the  Corporation  sent 


TRIAL  PERIOD  1871-1881.  393 

him  the  usual  fee,  he  returned  it,  with  the  request  that  the  amount 
be  spent  in  buying  books  connected  with  the  subject  of  his  lectures 
for  the  Law  Library. 

Lectures  were  given  by  Professor  Washburn  on  Real  Property, 
Criminal  Law  and  Procedure ;  Professor  Langdell,  to  use  his  own 
language  as  Dean,  "had  five  exercises  a  week"  in  Equity  Jurisdic- 
tion and  Procedure  and  "gave  a  new  course  of  lectures  on  Civil 
Procedure  at  Common  Law  without  a  Text  Book."  Assistant 
Professor  Ames  "had  three  exercises  a  week  on  Contracts  and 
also  on  Torts.  He  also  had  short  courses  on  Civil  Procedure  at 
Common  Law,  and  Bills  and  Notes." 

Ames  also  at  this  time  prepared  the  third  Case  Book  ever  used 
— a  collection  of  cases  on  Trespass,  Conversion  and  Defamation, 
which  was  later  amplified,  and  became,  in  1893,  his  Cases  on 
Torts,  (i) 

At  the  beginning  of  this  year,  1874-75,  the  new  Royall  Pro- 
fessor, James  B.  Thayer,  began  his  work,  giving  lectures  on 
Evidence  and  on  Trusts.  Unlike  Assistant  Professor  Ames,  Pro- 
fessor Thayer  did  not  adopt  the  Langdell  method,  but  confined 
himself  for  many  years  to  the  old  system  of  instruction. 

Though  the  Langdell  method  had  now  been  in  use  for  four 
years,  it  could  not  yet  be  said  to  be  firmly  established.  Many 
lawyers  and  teachers  still  doubted  its  efficacy  and  its  practica- 
bility. Its  originator,  however,  was  firm  in  his  own  belief,  so  firm 
that  he  left  the  system  to  prove  its  own  value,  utterly  without 
aid  of  argument.  As  has  been  well  said,  "one  of  the  most  strik- 
ing facts  in  the  life  of  Professor  Langdell  is  the  deep  silence 
which  surrounds  his  work.  He  accomplished  a  revolution  without 
getting  into  a  controversy.  As  Professor  Ames  has  pointed  out, 
he  never  wrote  anything  in  explanation  or  defence  of  his  system 
after  the  brief  statement  made  in  the  preface  to  his  collection  of 
Cases  on  Contracts."  The  bitter  criticism  directed  at  his  methods 
by  law  reviews  and  by  Law  Professors  was  never  answered  by 
Langdell.  He  allowed  his  system  absolutely  to  speak  for 
itself.  (2) 

Meanwhile  the  financial  condition  of  the  School  had  become 
decidedly  prosperous,  owing  to  the  raising  of  the  tuition  fee  for 


(T)     See  Preface  to  Cases  on  Torts  (1893). 

(2)  Christopher  Columbus  Langdell,  by  William  Schofield  in  Amer. 
Law  Register,  Vol.  XLVI  (1907).  Christopher  Columbus  Langdell,  by 
James  Barr  Ames  in  Harr.  Grad.  Magazine,  Vol.  XII. 


394  HARVARD  LAW  SCHOOL. 

first  year  students  from  $100  to  $150  and  the  increase  in  number 
of  students  ;( i )  and  on  Jan.  25,  1875,  the  Corporation,  on  recom- 
mendation of  the  Law  Faculty,  raised  the  tuition  fee  for  second 
year  students  also  to  $150,  to  take  effect  Sept.  27,  1876(2).  At 
the  same  time,  the  salary  of  the  Professors  was  raised  by  the  Cor- 
poration from  $4,000  to  $4,500  after  March  i,  1875. (3) 

A  still  more  important  result  of  the  increase  in  financial  pros- 
perity was  the  establishment  by  the  Corporation  on  March  18, 
1875,  of  a  new  Professorship  of  Law,  which  they  named  the 
Story  Professorship,  "in  memory  of  the  distinguished  services 
rendered  to  the  University  by  Joseph  Story,  as  a  member  of  the 
Corporation  from  1825  to  1845,  and  as  Dane  Professor  of  Law 
from  1829  to  1845,  during  which  period  the  Law  School  increased 
greatly  in  numbers  and  importance.  The  instruction  given  by  the 
new  Professor  relates  chiefly  to  Mercantile  Law. "(4) 

Thus  tardily,  thirty  years  after  his  death,  did  Harvard  College 
pay  tribute  to  the  great  work  of  Story  in  its  behalf. 

To  fill  this  chair.  John  C.  Gray,  Jr.,  who  had  been  a  Lecturer  in 
the  Law  School  for  several  years,  was  chosen.  Mr.  Gray  was 
born  July  14,  1839,  a*  Brighton,  Mass.  He  graduated  from  Har- 
vard in  1859,  and  attended  the  Law  School  1860-62.  Immediate- 
ly after  admission  to  the  Bar  in  1862,  he  joined  the  army  as 
Second  Lieutenant  in  the  4ist  Reg.  Mass.  Vol.  Infantry,  later 
serving  in  the  3rd  Mass.  Vol.  Cavalry,  and  later  on  the  Staff  with 
the  rank  of  Major.  At  the  close  of  the  war  he  formed  a  part- 
nership with  John  C.  Ropes  (L.  S.  1858-61).  He  was  an  editor 
of  the  American  Law  Review  from  1867  to  1872  (Vols.  I-IV). 

The  year  1875,  however,  is  noted  above  all  others  for  an  event, 
important  not  only  in  the  history  of  the  School,  but  also  in  the 
history  of  legal  education  throughout  the  United  States,  the  estab- 
lishment of  an  admission  examination  applicable,  from  and  after 
the  beginning  of  the  academic  year  1877-78,  "to  all  candidates  for 


(1)  Tuition     fees— 1865-66,    $14,704.75;     1866-67,    $13,035.00;    1867-68. 
$10,382.50;    1868-69,    $11,527.50;    1869-70,     $11,525.00;     1870-71,     13,524.00; 
1871-72,  *$i6,i79.oo;   1872-73,  $15,075.00;  1873-74,  $16,975.00;   1874-75,  $17,- 
700.00. 

*Fee  of  the  first  year  raised  from  $100  to  $150. 

(2)  By  vote  of  the  Corporation  Nov.  10,  1879,  the  tuition  fee  for  third 
year  students  was  made  $150,  from  Sept.  I,  1879. 

(3)  At  the  same  time  $4,000  of  the  Law  School  surplus  was  transferred 
to  the  payment  of  the  salary  of  the  Bussey  Professor;  and  by  vote  of 
the  Corporation  Nov.  29,  1875,  $5000  of  the  surplus  of  1874-75  was  simi- 
larly transferred. 

(4)  See  President's  Annual  Report  for  1874-75. 


TRIAL  PERIOD  1871-1881.  395 

the  degree  of  the  School  who  are  not  already  Bachelors  of  Arts, 
Science,  or  Philosophy."(i) 

This  further  factor  in  LangdelFs  scheme  of  legal  education 
was  brought  to  fruition  by  vote  of  the  Law  Faculty,  February  27, 
1875,  approved  by  the  Corporation,  March  I,  1875(2)  : 

Of  this  action,  President  Eliot  said (3)  : 


(1)  The  first  law  school  to  require  an  admission  examination,  it  ap- 
pears, was  the  Boston   University  Law   School,  in   1872.     Columbia  Law 
School  required  such  examination  in   1876-77. 

(2)  "Voted  that  in  our  future  Circulars  and  in  future  Catalogues  of  the 
University,  the  following  announcement  be  omitted,  to  wit : 

"No  examination  and  no  particular  course  of  previous  study  is  re- 
quired for  admission,  except  in  cases  of  candidates  for  a  degree  who  ap- 
ply for  admission  to  advanced  standing;  but  the  student,  if  not  a  grad- 
uate of  a  college,  must  produce  testimonials  of  good  moral  character." 

Voted  that  in  our  future  Circulars  and  in  future  Catalogues  of  the 
University,  the  following  announcement  be  inserted,  to  wit : 

"The  course  of  instruction  in  the  School  is  designed  for  persons  who 
have  received  a  college  education,  and  Bachelors  of  Arts  will  be  ad- 
mitted as  candidates  for  degrees  on  presentation  of  their  diplomas;  but 
for  the  present,  young  men  who  are  not  Bachelors  of  Arts  will  also  be  ad- 
mitted to  the  School  for  a  degree,  upon  passing  a  satisfactory  examination, 
as  follows : 

1.  In  Latin,  in  which   subject  candidates  will  be  required  to  translate 
(without  the  aid  of  grammar  or  dictionary)  passages  selected  from  one  or 
more  of  the  following  books:   Caesar's  Commentaries;   Cicero's  Orations 
and  the  Aeneid  of  Virgil. 

2.  In  Blackstone's  Commentaries  (exclusive  of  Editor's  notes). 
Proficiency    in    French    representing   an    amount    of    preparatory    work 

equivalent  to  that  demanded  of  those  who  offer  Latin  will  be  accepted  as 
a  substitute  for  the  requisition  in  the  latter  language.  Candidates  will  be 
required  to  translate  (without  the  aid  of  grammar  and  dictionary)  pas- 
sages from  standard  French  prose  authors,  and  also  to  render  into  French, 
passages  of  easy  English  prose. 

The  Faculty  will  in  their  discretion  permit  some  other  language  to  be 
substituted  for  Latin  or  French,  but  a  satisfactory  examination  in  some 
language  other  than  English  will  be  insisted  upon  in  all  cases. 

Voted  that  the  following  announcement,  to  wit : 

"Students  who  are  not  candidates  for  a  degree  may  enter  the  School 
at  any  stage  of  their  professional  studies,  and  at  any  time  of  the  year, 
and  may  avail  themselves  of  the  advantages  of  the  School  in  whatever 
manner  and  to  whatever  extent  they  see  fit,"  be  modified  so  as  to  read  as 
follows : 

"Persons  who  are  candidates  for  a  degree  may  upon  producing  certifi- 
cates of  good  moral  character,  enter  the  School  as  "special  students" 
(added  Feb.  26,  1876),  at  any  time,  without  examination,  and  avail  them- 
selves of  its  advantages  in  whatever  manner  and  to  whatever  extent  they 
see  fit." 

A  supplementary  vote  was  passed  July  2,  1875  by  the  Law  Faculty,  as 
follows : 

"Voted  that  at  the  beginning  of  the  academic  year  1877-78,  and  after- 
wards, the  Faculty  will  accept  a  degree  of  Bachelor  of  Science  or  other 
degree,  instead  of  a  degree  of  Bachelor  of  Arts,  when  satisfied  that  it 
represents  an  amount  of  linguistic  training  equivalent  in  sum  total  to  that 
implied  in  the  requisition  for  admission." 

(3)  See  President's  Annual  Report  for  1874-75. 


396  HARVARD  LAW  SCHOOL. 

The  important  fact  is  that  the  University  proposes  to  demand 
of  all  candidates  for  its  degree  of  Bachelor  of  Laws,  or  Doctor  of 
Medicine,  evidence  of  some  academic  training,  not  so  much  for 
the  sake  of  the  knowledge  which  that  training  imparts,  as  of  the 
mental  power  which  it  developes.  The  University  in  taking  this 
action  is  only  doing  its  duty  to  the  learned  professions  of  Law 
and  Medicine,  which  have  been  for  fifty  years  in  process  of  degra- 
dation through  the  barbarous  practice  of  admitting  to  them  per- 
sons wholly  destitute  of  academic  culture.  .  .  .  The  Schools 
of  Law  and  Medicine  which  have  sprung  up  all  over  the  country 
during  the  last  forty  years  have  held  no  examinations  for  admis- 
sion, and  have  required  of  candidates  for  admission  no  particular 
course  of  previous  study.  Had  they  demanded  a  reasonable 
amount  of  academic  training,  most  of  them  could  have  procured 
it  from  a  large  proportion,  at  least,  of  their  pupils.  It  is  not  the 
young  men  of  the  country,  or  their  parents,  who  are  responsible 
for  the  present  degraded  state  of  professional  education,  but  the 
Faculties  and  the  Governors  of  the  modern  American  professional 
schools,  who  having  but  feeble  faith  in  the  value  of  academic 
training,  or  being  afraid  of  diminishing  the  number  of  their 
pupils,  failed  to  demand  of  candidates  for  admission  an  adequate 
general  education.  Thousands  of  ignorant,  undisciplined  men 
have  frequently  entered  the  legal  and  medical  professions  with  the 
scantiest  technical  preparation,  to  their  own  lasting  injury  and 
that  of  the  community,  who  would  have  found  means  to  get  some 
academic  training,  had  any  been  required  of  them.  In  the  mean- 
time, the  High  Schools,  Academies,  and  Colleges  of  this  country 
have  been  deprived  of  the  legitimate  support  which  in  every  other 
civilized  country  they  derive  from  the  fact  that  only  through  them 
can  the  learned  professions  be  reached.  As  one  consequence, 
the  number  of  young  men  who  resort  to  colleges  has  diminished 
relatively  to  population  during  the  past  forty  years,  instead  of 
rising  as  it  should  have  done  with  the  increase  of  general  well- 
being.  So  long  as  lectures  were  the  only  means  of  teaching  in 
the  Law  and  Medical  Schools  of  this  University,  the  heterogen- 
eous character  of  the  class  did  not  much  affect  the  efficiency  of 
the  instruction,  except  so  far  as  the  lecturers  felt  obliged  to  adapt 
their  teaching  to  the  ignorant  and  untrained  portion  of  their  audi- 
ence. But  with  the  adoption  of  catechetical  methods  in  both 
Schools,  the  presence  in  the  recitation  rooms  of  a  considerable 
proportion  of  persons  whose  minds  were  rude  and  unformed 
became  at  once  a  serious  impediment.  The  large  use  of  examin- 
ations in  writing  also  brought  into  plain  sight  the  shocking 
illiteracy  of  a  part  of  the  students,  and  made  the  Faculties  quite 
ashamed  of  some  of  their  pupils.  In  the  legal  profession  there 
are  various  walks,  recognized  by  statute  or  by  ancient  usage  in 
some  countries,  but  existing  everywhere  with  more  or  less  precis- 
ion of  definition.  It  should  be  the  aim  of  a  University's  Law 
School  to  train  young  men  of  good  preliminary  education  and 


TRIAL  PERIOD  1871-1881.  397 

average  ability,  taken  by  the  hundred,  for  the  higher  walks  of  the 
profession.  .  .  .  The  Law  and  Medical  Faculties  have  not 
failed  to  observe  that  some  very  exceptional  persons  succeed 
in  life,  by  force  of  great  natural  endowments,  who  had  no  early 
discipline  or  regular  training  of  any  sort ;  but  they  believe  that 
such  persons  succeed  not  because  of,  but  in  spite  of,  their  early 
disadvantages,  and  that  their  cases  afford  no  argument  against 
the  general  utility  of  thorough  training,  both  academic  and  pro- 
fessional, and  no  argument  in  favor  of  laxity  in  admitting  to 
learned  professions.  Genius  has  seven-leagued  boots,  but  com- 
mon men  require  a  well-made  road. 

Reliance  should  also  be  placed  on  a  more  general  principle, 
which  is  of  great  encouragement  to  all  who  desire  American 
institutions  of  high  education  to  make  large  advances  in  thorough- 
ness and  strictness.  An  institution  which  has  any  legal  prestige 
and  power,  will  make  a  money  profit  by  raising  its  standard,  and 
that  either  at  once  or  in  a  very  short  time.  Its  demand  for  great- 
er attainments  on  the  part  of  its  students  will  be  quickly  re- 
sponded to,  and  this  improved  class  of  students  will  be  in  a  mar- 
vellously short  time  so  increase  the  reputation  and  influence  of  the 
institution  as  to  make  its  privileges  and  its  rewards  more  valued 
and  more  valuable.  ...  In  the  Law  School,  within  five 
years,  a  strict  examination  in  writing  for  the  degree  has  been 
imposed,  where  there  was  none  before ;  the  regular  period  of  res- 
idence required  for  the  degree  has  been  made  two  years  instead 
of  eighteen  months ;  examinations  have  been  established  for 
passing  from  one  year  of  the  course  to  the  next ;  the  tuition-fee 
has  been  raised,  and  the  whole  tone  of  the  School  changed  from 
laxity  to  strictness.  ( I ) 

The  action  of  the  Corporation  in  assenting  to  so  radical  a 
change  in  the  admission  to  the  Law  School  became  the  subject  for 
grave  criticism  by  the  Board  of  Overseers,  in  the  fall  of  1875. 

A  Committee  on  Reports  and  Resolutions  appointed  by  vote  of 
the  Overseers,  Dec.  31,  1875,  of  which  William  G.  Russell,  one  of 
the  leaders  of  the  Boston  Bar,  was  Chairman,  reported  the  follow- 
ing resolutions : 

Resolved  that  the  grave  change  attempted  by  the  Faculty  of  the 
Law  School,  assented  to  by  the  Corporation  and  published  in 
the  Catalogue  for  the  year  1875-76,  requiring  a  degree  of  A.  B. 
or  a  preliminary  examination  before  any  student  shall  be  admitted 
to  the  School  as  a  candidate  for  a  degree  of  Bachelor  of  Laws, 

( i )  On  April  27,  1875,  the  Law  Faculty  stiffened  the  requirement  for  a 
degree  by  voting  that  every  candidate  for  a  degree  in  the  second  year  be 
required  in  addition  to  the  two  required  subjects  to  take  at  least  five  hours 
a  week  in  elective  subjects. 


398  HARVARD  LAW  SCHOOL. 

and  giving  notice  that  the  course  of  instruction  in  the  School  is 
designed  for  persons  who  have  received  a  college  education, 
should  have  been  submitted  to  the  Board  of  Overseers  for  its 
approval. 

Resolved  that  a  policy  which  shall  confine  the  Law  School  to 
college  graduates  is  in  the  opinion  of  this  Board  injudicious. 

These  resolutions  were  considered  at  a  meeting  of  the  Over- 
seers on  February  9,  1876;  and  after  hot  debate  were  amended 
by  a  resolve,  offered  by  ex-Judge  E.  Rockwood  Hoar.  "That 
this  Board  do  not  approve  the  announcement  made  by  the  Faculty 
of  the  Law  School  that  the  School  is  intended  only  for  graduates 
of  colleges." 

Finally,  however,  at  a  meeting  on  April  12,  1875,  all  resolutions 
were  withdrawn. 

It  may  be  seen  from  the  above  that  Dean  Langdell's  path 
towards  the  accomplishment  of  his  ends  was  not  free  from  seri- 
ous obstacles. 

In  the  year  1875-76,  the  number  of  students  made  a  larger  gain 
than  in  any  preceding  year,  rising  to  173,  with  an  average  attend- 
ance of  163. 

The  new  Story  Professor,  John  C.  Gray,  began  his  work  in  the 
fall  of  1875,  giving  lectures  on  Sales  and  on  Partnership  and 
other  titles  in  Mercantile  Law.  He  did  not  adopt,  however,  the 
Langdell  method,  until  some  years  later.  Professor  Ames  gave 
courses  on  Contracts,  Torts,  and  Bills  and  Notes.  Professor  Wash- 
burn  gave  his  usual  courses  on  Real  Property  and  Criminal  Law 
and  Procedure,  and  Professor  Thayer  gave  Evidence  and  Trusts. 
Professor  Langdell  gave  his  Equity  Jurisdiction  and  Procedure, 
Civil  Procedure  at  Common  Law  and  a  new  course  on  Civil  Pro- 
cedure under  the  New  York  Code. 

In  the  spring  of  1876,  Dean  Langdell  carried  into  effect  the 
fourth  of  his  great  ideas  towards  the  raising  of  the  standard  of 
legal  education — the  institution  of  a  period  of  three  years  study 
for  a  degree  of  LL.B.(i),  the  Law  Faculty  voting,  February  26, 
1876: 

that  it  is  desirable  to  establish  a  three  years  course  of  study  and 
to  require  a  satisfactory  examination  in  the  studies  of  each  year 
as  a  condition  of  granting  a  degree ;  and  that  this  change  should 


(i)     The  Boston  University  Law  School  also  established  a  three  years 
term  in  this  year,  1876. 


TRIAL  PERIOD  1871-1881.  399 

take  effect  as  to  all  students  who  enter  the  School  at  the  beginning 
of  the  academic  year  1877-78  or  afterwards. (i) 

As  President  Eliot  said  in  his  Annual  Report  for  1875-76. 

The  approbation  of  the  governing  boards  of  the  University  was 
really  made  known  in  advance  of  the  definite  action  of  the 
Faculty ;  but  the  Corporation  formally  sanctioned  the  step  on  the 
24th  of  April,  1876,  and  have  taken  measures  to  provide  against 
the  possible  reduction  in  the  income  of  the  School  from  tuition- 
fees  in  1877-78  and  1878-79  by  reserving  $3,543.52  from  the  sur- 
pluses of  1874-75  and  1875-76.  They  will  also  reserve  the  surplus 
of  the  current  year  for  the  same  reason.  These  precautions  are 
the  more  necessary,  because  two  restrictive  measures  go  into 
effect  simultaneously  in  September,  1877 ;  namely,  the  examina- 
tion for  admission,  and  the  requisition  of  three  years  of  study  for 
the  degree. 

It  is  characteristic  of  the  breadth  of  mind  of  those  engaged  in 
carrying  out  Langdell's  ideas  that  they  did  not  hesitate  to  adopt 
them,  even  in  the  face  of  probable  consequent  reduction  in  the 
number  of  students.  (2) 

The  Commencement  of  June,  1876,  was  noted  for  being  the 
first  at  which  exercises  were  held  in  Sanders  Theatre. 

By  vote  of  the  Harvard  College  Faculty,  the  Law  School  (as 
well  as  the  Divinity  School,  Doctors  of  Philosophy  and  Masters 
of  Art)  were  each  to  have  an  oration  on  the  Commencement 
Programme,  and,  February  26,  1876,  the  Law  Faculty  voted  that 
the  students  of  the  second  year  should  vote  for  six  persons  as 
candidates  to  deliver  the  oration,  the  Law  Faculty  to  choose  one 


(1)  As  this  change  to  a  three  years  course  was  a  radical  one  it  was 
deemed  advisable  to  reduce  the  other  requirements  somewhat.     Hence  on 
April   i,   1876,  the  Law  Faculty  voted  that  only  two  years  of  residence 
should  be  required  of  a  candidate  for  .a  degree ;  and  on  June  24,  1876,  it 
dropped  the  required  pass  mark  to  a  general  average  of  65  per  cent. 

(2)  That  Langdell  himself  fully  realized  this  probable  effect  is   seen 
from  his  Annual  Report  for   1875-76 : 

"The  want  of  adequate  accommodation  for  the  large  numbers  who  now 
constantly  resort  to  the  Library  would  be  a  source  of  much  embarrassment, 
were  it  not  that  we  have  a  prospect  of  relief  in  the  near  future  by  a  dimi- 
nution of  our  numbers.  We  have  in  the  School  at  this  moment  one  hun- 
dred and  ninety  students,  being  an  increase  of  twenty-eight  over  the  num- 
ber in  the  School  at  the  corresponding  date  last  year ;  and  there  is  rea- 
son to  believe  that  we  shall  reach  not  less  than  two  hundred  before  the  end 
of  the  year.  It  is  reasonable  to  suppose  that  the  changes  which  are  to  go 
into  effect  as  to  all  students  who  enter  the  School  after  this  year,  have 
had  some  effect  in  increasing  our  numbers  this  year ;  but,  whether  this  is 
so  or  not,  we  must  expect  a  large  falling  off  in  the  number  of  new  en- 
tries during  the  next  few  years ;  and  during  the  next  two  years  there  will 
be  nothing  to  compensate  for  this  falling  off,  as  we  shall  not  have  a  class 
of  third-year  students  until  the  academic  year  1879-80." 


400  HARVARD  LAW  SCHOOL. 

out  of  these  six.(i)  The  Visiting  Committee  of  the  Overseers, 
by  John  Lowell,  Chairman,  reported  on  November  29,  1876,  that 
the  plan  of  giving  the  Law  School  representation  in  Commence- 
ment Exercises  was  calculated  to  advance  the  interest  of  the 
School. 

In  1876-77  the  number  of  students  connected  with  the  School 
increased  to  199;  and  the  Dean  said  in  his  Report  that,  the  pre- 
diction, made  in  his  Report  of  last  year,  that  the  establishment  of 
an  examination,  together  with  an  extension  of  the  course  of  study 
from  two  years  to  three  years,  would  cause  an  immediate  and 
material  diminution  of  our  numbers,  had  not  thus  far  been  veri- 
fied. 

This  was  due  in  part,  however,  to  the  fact  that  the  number  of 
second  year  students  and  resident  Bachelors  of  Law  was  very 
large. 

The  number  of  new  entries  showed  the  effect  of  the  new  rule 
as  to  admission  examinations  (though  it  had  not  yet  gone  into 
effect)  by  the  falling  off  in  non-college-graduates.  The  improve- 
ment in  quality  was  shown  by  the  fact  that,  since  1872-73,  the 
number  of  Harvard  graduates  in  the  School  had  more  than 
doubled.  (2) 


(1)  At  the  close  of  the  academic  year,   1880-81,  a  change  was  made 
in  the  method  of  obtaining  candidates  for  Commencement  parts ;  and,  by 
vote  of  the  Law  Faculty  June  14,  1881,  all  third  year  men  who  had  ob- 
tained an  average  of  75  per  cent,  in  the  studies  of  the  first  and  second 
years  were  to  be  admitted  to  write  parts. 

(2)  One  impediment  to  the  prosperity  of  the  Law  School  was  pointed 
out  by  Dean  Langdell  in  his  Annual  Report  as  follows : 

"The  Law  School  has  always  had  one  great  disadvantage  to  contend 
against,  to  which  all  other  departments  of  the  University  are  strangers. 
I  refer  to  the  fact,  that,  while  the  legal  profession  is  so  far  a  strict 
monopoly  that  no  one  can  enter  it  without  formal  admission,  the  Law 
School  not  only  exercises  no  direct  control  over  such  admission,  but  it 
receives  no  recognition  or  countenance  from  those  who  do  exercise  such 
control.  The  utmost  privilege  that  it  has  ever  enjoyed,  even  in  Massa- 
chusetts, is  that  of  having  the  time  actually  spent  by  a  student  in  the 
School  received  as  an  equivalent  for  the  same  length  of  time  spent  in  a 
lawyer's  office ;  and,  beyond  the  limits  of  Massachusetts,  it  has  seldom  en- 
joyed that  privilege  to  the  full  extent,  unless  we  except  those  States  in 
which  candidates  for  admission  are  subjected  to  no  test  except  that  of 
examination.  Nowhere  has  there  ever  been  any  recognition  of  our  de- 
gree or  our  examinations." 

The  above  remark  was  called  forth  largely  by  a  recent  rule  of  the  New 
York  Court  of  Appeals  providing  that  for  admission  to  the  New  York  Bar 
a  student  must  serve  two  years  of  clerkship,  but  that  for  one  of  these 
years  his  study  in  a  New  York  Law  School  might  be  counted. 

On  this  subject,  President  Eliot  said  in  his  Annual  Report  for  1876-77: 

"The  Harvard  Law  School  does  not  desire  to  have  its  graduates  ad- 
mitted to  practice,  either  in  Massachusetts  or  elsewhere,  on  the  diploma  of 


TRIAL  PERIOD  1871-1881.  401 

In  the  matter  of  instruction,  the  most  marked  event  of  the  year 
of  1876-77  was  the  resignation  of  Professor  Emory  Washburn, 
tendered  April  i,  1876,  to  take  effect  in  September.  This  step 
Washburn  had  been  contemplating  for  a  year,  as  he  was  out  of 
touch  with  the  many  changes  that  had  been  going  on  around  him ; 
and,  while  never  showing  the  least  opposition  or  resentment,  he 
felt  that  he  was  too  old  to  come  into  complete  sympathy  with  all 
these  novelties.  His  resignation  was  accepted  by  the  Corporation 
on  April  3  ;  and  on  April  14,  President  Eliot  wrote  to  him : 

The  Corporation  are  well  aware  that  your  withdrawal  from  the 
School,  which  you  have  served  so  assiduously  for  twenty  years, 
will  entail  upon  it  a  severe  loss.  You  have  served  the  School  by 
your  high  reputation  as  an  author,  by  your  regular  teachings,  by 
your  constant  accessibility  to  the  young  men  who  desired  your 
counsel,  by  your  ready  sympathy  with  the  students  and  hearty 
interest  in  their  affairs,  and  by  your  eminent  success  as  a  prac- 
titioner before  you  accepted  a  Professorship.  They  thank  you 
heartily  for  these  varied  services;  they  congratulate  themselves 
that  the  School  has  had  the  benefit  of  your  experience,  your 
learning,  and  your  character,  for  twenty  years ;  and  they  felicitate 
you  upon  the  universal  respect  and  esteem  which  will  accompany 
you,  when  at  a  ripe  age  and  in  the  full  vigor  of  your  powers,  you 
lay  aside  the  active  duties  of  your  Professorship. 

The  vote  of  the  Corporation  was  as  follows : 

Voted  that  this  Board  desire  to  express  to  Professor  Washburn 
their  unanimous  sense  of  his  constant  devotion  to  the  Law  School 
during  the  twenty  years  that  he  has  been  connected  with  it,  their 
high  appreciation  of  his  varied  services  to  the  University,  and 
their  regret  at  his  withdrawal  from  the  School. 


the  School,  and  it  asks  no  favors  for  its  graduates  at  any  examinations  for 
admission  prescribed  by  competent  authority;  but  it  feels  justified  in  ask- 
ing that  its  graduates,  who  have  spent  two  or  three  years  in  the  study  of 
law  under  the  guidance  of  learned  and  faithful  teachers,  should  not  be 
placed,  as  regards  admission  to  the  Bar,  on  a  level  with  persons  who  have 
never  opened  a  law  book,  as  is  now  the  case  under  the  rules  of  the  New 
York  Court  of  Appeals.  In  view  of  its  own  honorable  history  as  a 
national  school  of  law,  the  School  also  thinks  it  a  duty  to  protest  against 
rules  for  admission  to  the  Bar  which  have  a  tendency  to  make  legal  edu- 
cation local  in  character,  and  to  recruit  each  Bar  chiefly  from  its  own  lo- 
cality. Rules  which  make  discriminations  in  favor  of  the  Law  Schools  of 
any  particular  States  have  this  tendency. 

What  the  Harvard  Law  School,  and  every  respectable  law  school  must 
desire  at  the  hands  of  the  States,  or  the  Courts,  is  that  time  well  spent  in 
the  School,  as  proved  by  passing  its  periodic  examinations,  should  count 
towards  admission  to  the  Bar  in  any  State,  like  time  spent  in  an  attorney's 
or  counsellor's  office  in  that  State,  except  that  one  year  of  pupilage  should 
have  been  passed  in  the  State  where  the  candidate  applies  for  admission." 
26 


402  HARVARD  LAW  SCHOOL. 

President  Eliot  said  in  his  Report  for  1875-76 : 

His  high  standing  as  an  advocate  before  he  accepted  a  Profes- 
sorship, and  the  reputation  which  he  acquired  as  an  author  after 
taking  the  Professor's  chair,  lent  weight  to  his  teachings ;  while 
his  accessibility  to  young  men,  his  ready  sympathy  with  them, 
and  hearty  interest  in  all  their  affairs,  gave  him  a  strong  personal 
influence  with  the  students.  The  respect  and  good  wishes  of  his 
colleagues,  and  of  hundreds  of  young  lawyers  whom  he  had 
served,  now  widely  scattered  over  the  country,  accompanied  him 
on  his  retirement. 

The  loss  of  an  instructor  so  universally  loved  was  severely  felt 
by  the  students,  and  by  all  the  graduates  who  had  sat  under  him ; 
and  it  was  well  phrased  in  the  report  of  the  Visiting  Committee 
to  the  Overseers,  March  27,  1876,  drafted  by  John  Lowell,  Chair- 
man : 

By  the  resignation  of  Professor  Washburn,  the  School  loses 
a  teacher  who  for  twenty  years,  with  undefatigable  zeal,  has  in- 
structed and  encouraged  successive  generations  of  young  men, 
not  only  by  his  lectures,  but  by  private  counsels,  and  the  example 
of  his  own  career.  The  enthusiasm  o£the  lecture  room  which  the 
German  jurists  deem  the  chief  advantage  of  oral  teaching,  was 
nowhere  more  felt  than  when  he  spoke,  and  was  enhanced  to  his 
hearers  by  the  recollection  that  they  were  listening  to  an  author 
of  national  reputation,  and  to  a  lawyer  who  had  been  among  the 
leaders  of  an  able  Bar.  Professor  Washburn  will  carry  with  him 
in  his  retirement,  or  in  the  new  fields  of  patriotic  activity  which 
he  may  cultivate,  the  reflection  that  he  will  be  remembered  with 
grateful  affection  by  large  numbers  of  men  who  in  their  turn  will 
fill  the  high  places  of  the  profession. (i) 


(i)  When  the  news  of  Washburn's  proposed  retirement  became  public 
the  American  Law  Review  had  said  (Vol.  X)  : 

"Amongst  all  who  have  enjoyed  the  benefit  of  his  instruction  and  influ- 
ence ...  we  can  safely  say  that  there  is  not  one  who  does  not  feel  towards 
him  the  strongest  feelings  of  attachment  and  respect.  With  a  sympathetic 
nature  which  made  him  the  friend  as  well  as  the  guide  and  counsellor  of 
the  young  men  who  studied  in  his  office  or  his  Law  School,  he  has  been 
an  inspiration  and  example  to  them  in  public  spirit,  in  personal  character 
and  in  all  that  is  honorable  in  professional  life." 

And  on  his  death  March  18,  1877,  it  said  in  an  obituary  notice  (Vol. 
XI): 

"He  had  an  even  sunny  temper,  and,  with  decided  opinions,  no  animos- 
ities— His  hospitalities  were  very  wide — the  friendliest  of  men — he  took 
an  interest  in  everything  that  concerned  human  welfare — he  loved  to  make 
other  people  happy  and  was  always  ready  with  counsel  and  assistance — 
his  sympathies  were  inexhaustible  and  he  carried  into  old  age  the  fresh- 
ness and  energy  of  youth — the  personal  friend  of  every  pupil  in  his  of- 
fice and  of  every  student  in  his  classes." 


Charles  S.  Bradley 


TRIAL  PERIOD  1871-1881.  403 

With  the  retirement  of  Washburn,  the  old  order  of  things  in 
the  Law  School  may  be  said  to  have  passed  away.  The  new 
regime,  now  had  full  swing,  and  Dean  Langdell  assumed  unfet- 
tered sway  among  his  associates. 

The  Corporation  was  very  fortunate  in  finding  as  Washburn's 
successor,  a  lawyer  of  the  highest  celebrity  and  of  the  most  attrac- 
tive personality,  one  who  had  already  taught  for  several  years  in 
the  School  as  Lecturer,  Charles  S.  Bradley  of  Providence,  Rhode 
Island.  This  selection  (as  Langdell  said  in  his  Annual  Report 
for  1880-81)  was  "a  brilliant  and  attractive  one,  and  was  urged 
by  a  strong  and  unanimous  opinion  in  the  legal  profession  of 
Boston."  At  the  time  of  Bradley's  appointment  as  Bussey  Pro- 
fessor, on  June  28,  1876,  he  was  fifty-seven  years  old.  He  was 
born  at  Newburyport,  Mass.,  in  1819,  prepared  for  college  at  the 
Boston  Latin  School,  and  graduated  from  Brown  University  in 
1838,  the  foremost  scholar  of  a  class  distinguished  for  its  men  of 
learning  and  celebrity,  such  as  T.  A.  Jenckes,  Marcus  Morton, 
President  E.  G.  Robinson  of  Brown,  and  A.  N.  Arnold.  After 
studying  law  in  the  Harvard  Law  School  in  1840-41,  in  the  same 
class  with  William  I.  Bowditch,  Rufus  King,  Caleb  W.  Loring, 
and  W.  W.  Story,  and  after  further  study  in  the  office  of  Charles 
F.  Tillinghast  of  Providence,  R.  I.,  he  was  admitted  to  the  Bar 
in  1841.  As  a  lawyer,  he  had  an  extraordinary  quickness  of  ap- 
prehension, subtlety,  fertility  of  resource,  great  native  breadth 
of  good  sense  and  a  vigorous  understanding.  "He  was  a  thorough 
advocate  and  came  very  near  being  a  great  orator,  having  a  com- 
manding and  dignified  presence  and  a  graceful  yet  energetic  deliv- 
ery." 

While  a  particularly  accomplished  equity  lawyer,  he  was  re- 
tained in  most  of  the  great  cases  in  the  State.  In  February,  1866, 
he  was  elected  Chief  Justice  of  Rhode  Island,  by  a  Republican 
Legislature.  Possessing  however  slight  judicial  temperament, 
and  better  pleased  with  the  contests  of  the  Bar,  he  resigned  his 
office  in  1868.  Taking  an  active  interest  in  politics,  he  was  for 
many  years  the  leader  of  the  Democratic  party  in  the  State — a 
forlorn  hope — and  he  was  particularly  active  in  the  long  and 
earnest  contest  to  secure  freer  suffrage  and  a  more  liberal  consti- 

Washburn's  chief  literary  productions  were  his  law  books,  delivered  first 
in  the  form  of  lectures  at  the  School,  on  Real  Property  (1860-62)  and  Ease- 
ments (1863).  He  also  wrote  a  Judicial  History  of  Massachusetts  (1840)  ; 
History  of  Leicester  (1860)  ;  Testimony  of  Experts  (1866)  ;  and  The  Study 
and  Practice  of  the  Law  (1871). 


404  HARVARD  LAW  SCHOOL. 

tution  for  Rhode  Island.  He  was  a  lover  and  student  of  litera- 
ture, and  especially  of  art ;  and  there  was  in  him  what  one  of  his 
friends  happily  called,  "a  certain  elegance  about  his  intellectual 
structure  and  movement,  a  mixture  of  grace  and  sentiment  and 
imagination  with  his  logical  and  practical  power  which  lifted  him 
above  the  dry  professional  road."  In  person,  he  was  strikingly 
handsome,  with  great  charm  of  manner  and  social  polish. 

The  course  of  instruction  in  1876-77  may  be  best  shown  by  the 
following  Tabular  Form,  which  was  for  the  first  time  introduced 
into  the  Dean's  Annual  Reports. 

(See  Table  on  the  following  pages.) 

Two  things  of  special  significance  are  shown  in  the  above 
table — the  marked  decrease  in  text  books  used  and  the  introduc- 
tion of  three  new  case  books ;  Ames'  Cases  on  Pleadings,  Lang- 
dell's  Cases  in  Equity  Pleading,  Langd ell's  Cases  on  Sales.  The 
Case  Book  System  was  rapidly  approaching  complete  acceptance. 

Another  sign  of  the  fulfilment  of  the  regime  had  appeared 
in  the  College  Catalogue  and  Law  School  Circular  of  the  previous 
year,  in  which  all  reference  to  "Methods  of  Instruction"  had  been 
dropped;  and  the  old  announcement,  (in  use  with  little  variation 
since  1830),  that,  "the  methods  of  Instruction  will  be  by  recita- 
tion, by  lectures,  expositions  and  by  moot  courts"  disappeared 
forever. 

Towards  the  close  of  the  academic  year  1876-77,  Assistant 
Professor  Ames  resigned,  March  26,  1877,  his  resignation  to  take 
effect  September  I,  1877.  The  Corporation,  however,  felt  that  his 
services  were  too  valuable  to  the  Law  School  to  be  thus  lost ;  and 
therefore  on  May  14,  1877,  it  voted:  "to  establish  an  additional 
Professorship  in  the  Law  School";  and  appointed  Ames  as  the 
new  Professor,  June  25,  1877. 

The  year  1877-78  was  stated  by  President  Eliot  in  his  Report, 
as:  "a  year  of  transition,  prosperous  financially,  but  unsatisfac- 
tory in  regard  to  results  of  the  examination  for  a  degree.  Of  the 
8 1  students  who  entered  to  be  candidates,  only  66  presented  them- 
selves for  examination  in  June  1878  and  only  47  passed.  The 
class  was  the  last  which  entered  before  the  establishment  of 
admission  examination,  and  also  the  last  class  entitled  to  take  the 
degree  upon  a  two  years'  course." 

196  students  were  connected  with  the  School  during  the  year, 
of  whom  173  remained  all  the  year,  an  average  of  183.  The 
course  of  instruction  remained  the  same  as  in  the  previous  year,. 


TRIAL  PERIOD  1871-1881. 


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TRIAL  PERIOD  1871-1881.  407 

except  that  Langdell  resumed  his  course  on  First  Year  Contracts. 

Two  significant  changes  were  made,  however  ;  one,  the  dropping 
of  the  use  of  Washburn  on  Real  Property  and  the  conduct  of  the 
courses  on  Real  Property  by  Professor  Gray  without  any  text 
book  ;  the  other  the  publication  by  Professor  Ames  of  his  Cases 
on  Bills  and  Notes,  this  being  the  sixth  case  book  in  use. 

A  number  of  the  students  petitioned  for  a  course  of  Massachu- 
setts Practice  ;  but  the  Law  Faculty  on  May  14,  1878,  voted  : 
"that  is  it  not  expedient  to  give  instruction  in  any  local  prac- 


The  most  important  event  of  the  academic  year  was  the  vote 
of  the  Law  Faculty,  June  28,  1878,  establishing  two  parallel 
courses  of  study  ;  an  ordinary  course  leading  to  the  degree  of 
LL.B.,  and  an  honor  course  leading  to  the  degree  of  LL.B.  cum 
laude.  The  leading  distinction  between  the  two  courses  was  that, 
in  the  honor  course  all  subjects  having  in  them  a  large  element  of 
Equity  were  required,  while  in  the  ordinary  course  those  subjects, 
as  well  as  all  others  after  the  first  year,  were  elective.  A  leading 
object  of  the  measure  was  to  enable  a  student  to  obtain  the 
ordinary  degree  without  studying  Equity  (provided  there  were  a 
sufficient  number  of  other  subjects  taught  to  make  up  the  required 
number  of  hours),  and  at  the  same  time  to  encourage  the  student 
of  Equity  by  specially  honoring  those  who  pursued  it  successfully 
to  the  full  extent  that  it  was  taught. 

It  is  to  be  noted  that  by  the  year  1877-78  the  membership  of 
the  Corporation  had  completely  changed.  In  1877,  Martin  Brim- 
mer, Rev.  Joseph  Henry  Thayer  and  John  Quincy  Adams  took 
the  place  of  John  A.  Lowell,  F.  B.  Crowinshield  and  Rev.  George 
Putnam.  In  1878,  Alexander  Agassiz  succeeded  George  T.  Bige- 
low  ;  and  Nathaniel  Thayer's  place  had  been  taken  by  Francis 
Parkman  in  1875.  ^n  ms  Annual  Report  for  1877-78,  President 
Eliot  said  : 


(i)  There  was  considerable  discussion  during  the  year  as  to  the  value 
of  the  courses  on  Pleading  and  Procedure.  Finally  as  Langdell  stated  in 
his  Annual  Report : 

"The  efforts  hitherto  made  to  teach  the  subject  of  Procedure  (except 
those  parts  of  it  which  belong  to  Pleading  and  Evidence)  have  not  been 
attended  with  satisfactory  results.  Two  elective  courses  of  one  hour  a 
week  each  were  given  upon  it  during  the  year  under  review,  but  they  were 
each  attended  by  only  a  very  small  number  of  students,  some  of  whom 
were  resident  Bachelors  of  Laws  who  were  studying  for  the  degree  of 
A.  M. ;  and,  with  a  single  exception,  the  latter  alone  presented  them- 
selves for  examination.  Both  of  those  courses  have  accordingly  been 
dropped  for  the  present,  and  it  seems  not  desirable  to  resume  the  subject 
hereafter,  unless  it  can  be  done  under  better  auspices." 


4o8  HARVARD  LAW  SCHOOL. 

When  Judge  Bigelow  died  (April  12,  1878)  the  President 
became  the  only  remaining  member  of  the  Corporation  as  consti- 
tuted when  he  entered  it  in  1869.  Since  December,  1875,  every 
other  member  of  that  Board  has  been  replaced.  The  President 
will  never  cease  to  remember  with  gratitude  and  affection  all  the 
members  of  the  Corporation  of  the  years  1868-75,  on  account  of 
the  consideration  with  which  they  treated  him,  when,  a  very 
young  man,  he  entered  on  his  responsible  duties,  and  of  the 
encouraging  confidence  which  they  always  manifested  in  him. 

In  this  year,  occurred  the  first  addition  to  the  Law  School 
endowment  since  the  generous  Bussey  legacy  in  1842.  On  Janu- 
ary 5,  1878,  a  noted  Massachusetts  lawyer — George  Bemis — died 
at  Nice,  France ;  and  by  will,  dated  October  23,  1872,  he  bequeath- 
ed the  sum  of  $50,000,  subject  to  a  life  estate,  to  Harvard  College 
to  found  a  Professorship  of  Public  or  International  Law.(i) 


(i)  "I  devise  and  bequeath  to  the  President  and  Fellows  of  Harvard 
College  the  sum  of  fifty  (50)  thousand  dollars,  subject  to  the  life  use  of 
my  sister  Sarah,  as  hereinbefore  specifically  set  apart:  said  legacy  to  be- 
come absolute  in  case  of  my  sister's  death  before  my  own.  To  have 
and  to  hold  to  said  President  .and  Fellows  and  their  successors  in  office 
in  trust  for  the  establishment  and  maintenance  of  a  Professorship  of  Pub- 
lic or  International  Law  in  the  Dane  Law  School  of  said  University.  I 
have  no  restriction  or  condition  to  lay  upon  the  Corporation  in  regard  to 
the  organization  and  management  of  such  Professorship,  other  than  that  I 
desire  that  it  may  always  be  filled  by  some  able  and  upright  publicist  and 
jurist,  who  shall  bring  to  the  office  a  competent  fitness  for  that  special 
department  of  study  and  practice,  and  of  sufficient  ability  to  discuss  the 
current  questions  of  national  interest  connected  with  it  in  such  a  way  as 
to  instruct  and  aid  the  popular  and  professional  understanding  of  them. 
In  that  sense  I  should  desire  him  to  be  not  merely  a  professor  of  the 
science,  but  a  practical  co-operator  in  the  work  of  advancing  knowledge 
and  good-will  among  nations  and  governments.  For  that  object  I  should 
prefer,  if  practicable,  that  the  incumbent  should  have  had  some  official 
connection  with  public  or  diplomatic  life,  or  at  least  have  had  an  oppor- 
tunity, by  foreign  travel  or  residence,  to  look  at  the  United  States  from  a 
foreign  point  of  view,  and  so  to  estimate  it  as  only  one  of  the  family  of 
nations. 

I  will  add  that  I  make  this  bequest  to  my  Alma  Mater  largely  through 
the  impulse  of  gratitude  for  her  valued  teachings,  but  more  especially  for 
the  instruction  which  I  derived  from  the  legal  department  of  her  Schools 
through  the  lips  of  the  late  Judge  Story,  whose  memory  I  cherish  as  one 
of  the  best  of  guides  to  study  whom  I  have  ever  had  the  good  fortune  to 
meet,  and  whose  friendly  stimulus  to  exertion  I  shall  always  gratefully 
remember. 

I  may  also  add  that  the  expression  of  my  hope  that  this  bequest  will  in 
some  degree  aid  the  promotion  of  the  science  of  public  law  in  the  United 
States,  particukrly  on  the  part  of  my  brother  lawyers,  who  I  have  thought 
have  hardly  been  alert  enough  in  coming  to  the  aid  of  the  National 
Government  on  the  great  questions  of  belligerent  and  neutral  rights  which 
have  of  late  years  so  much  exercised  our  country  and  England. 

May  it  be  the  continuing  pre-eminence  of  my  country  to  know  and 
practice  a  just  and  Christian  neutrality,  while  other  nations  are  cultivating 
the  arts  and  prerogatives  of  war." 


TRIAL  PERIOD  1871-1881.  409 

Mr.  Bemis  was  born  in  Watertown,  Mass.,  October  13,  1816, 
the  son  of  Seth  Bemis,  (a  successful  manufacturer  and  a  Harvard 
graduate  of  1795).  He  graduated  from  Harvard  in  1835,  studied 
in  the  Law  School  under  Story  and  Greenleaf,  1836-39,  and  was 
admitted  to  the  Bar  in  the  latter  year.  His  acuteness  soon  brought 
him  a  profitable  practice.  The  first  appearance  of  his  name  in  the 
Massachusetts  Reports  was  in  1841,  in  three  cases  upon  a  subject 
with  which  his  life  was  long  associated, — reform  in  the  treatment 
criminals. (i)  In  1843,  ne  was  associated  with  George  T.  Bige- 
low  (later  Chief  Justice)  as  counsel  for  the  defendant  in  the 
noted  murder  trial  of  Com.  v.  Abner  Rogers  (7  Mete.  50)  in  which 
case,  Chief  Justice  Shaw's  opinion  became  the  leading  American 
authority  upon  insanity  as  a  defence  in  criminal  prosecutions.  In 
1850,  he  was  associated  with  Attorney  General  John  L.  Clifford 
in  the  celebrated  Webster  murder  trial  (5  Cush.  295).  Besides 
editing  two  full  reports  of  these  trials,  he  made  the  subject  of 
crimes  and  their  punishment  the  object  of  profound  and  philoso- 
phical study,  maintaining  an  active  correspondence  with  foreign 
jurists.  In  1858,  his  law  practice  was  suddenly  interrupted  by  a 
severe  hemorrhage  of  the  lungs,  and  he  was  compelled  to  relin- 
quish his  work  in  this  country  and  removed  to  Europe  where 
he  remained  until  his  death  in  1878,  devoting  his  time  to 
careful  study  of  Public  Law  and  the  Law  of  Nations.  During  the 
Civil  War,  he  entered  with  great  vigor,  in  many  newspaper 
articles  and  pamphlets,  into  the  discussion  of  the  prominent  ques- 
tion of  neutral  and  belligerent  rights.  He  also  rendered  impor- 
tant service  to  the  State  Department  in  the  investigations  prepara- 
tory to  the  settlement  of  the  Alabama  Claims. (i) 

The  year  1878-79,  said  President  Eliot  in  his  Annual  Report, 
"was  an  exceptional  one ;  for  there  was  no  third  year  class,  and 
yet  the  second  year  class  was  not  entitled  to  take  the  degree 
because  the  new  requisition  of  three  years  of  study  was  already  in 
force."  The  year  was  not  a  prosperous  one.  The  new  require- 
ment for  admission  and  for  the  degree  caused  a  decided  falling  off 
in  students,  169  being  connected  with  the  School  during  the  year, 
with  an  average  of  154  in  attendance.  Langdell,  however,  in  his 
Report,  stated  that,  "thus  far  there  seems  to  be  no  ground  for 
discouragement;"  and  Eliot  noted  that  the  reduction  in  numbers 
was  not  so  great  as  occurred  in  1872-73,  when  the  course  of  study 

(r)  See  Wilde  v.  Commonwealth;  Shepherd  v.  Com.;  Pluntbly  v.  Com., 
2  Mete.  408. 


410  HARVARD  LAW  SCHOOL. 

was  lengthened  from  eighteen  months  to  two  years,  and  other- 
wise reconstructed.  ( I ) 

The  course  of  instruction  as  remodelled  to  conform  to  the  new 
provision  for  Honor  Courses  was  as  follows : 

(See  Table  on  the  following  pages.) 

The  report  of  the  Visiting  Committee  to  the  Overseers  in  1878- 
79,  made  by  Judge  John  Lowell,  Chairman,  stated :  "The  scheme 
of  instruction  is  the  result  of  profound  and  superlative  reflection 
and  is  carried  out  by  men  of  extraordinary  ability  and  learning." 

The  year  1879-80  was  a  hard  one  for  the  School.  Its  financial 
condition  was  far  from  prosperous.  There  had  been  a  progress- 
ive diminution  in  the  net  income  of  the  Bussey  Trust  Fund,  due 
to  decrease  in  rent  (one  fourth  of  which  came  to  the  Law 
School),  from  $35,349.96  in  1873-74  to  $7,010.58  in  1879-80. 
The  number  of  students  was  still  small,  only  177  being  connected 
with  the  School  during  the  year,  with  an  average  attendance  of 
157.  The  School  also  suffered  a  severe  loss  in  the  resignation  of 
Professor  Bradley  on  March  10,  1879  (to  take  effect  at  the  end  of 
the  academic  year),  of  which  President  Eliot  said  in  his  Annual 
Report : 

The  Law  School  lost  the  services  of  one,  whose  professional 
eminence  and  large  experience  in  affairs  lent  weight  to  his  teach- 
ings, and  whose  cordial  liking  for  young  men  made  him  a  sympa- 
thetic and  inspiring  instructor.  Unable  to  withdraw  himself 
from  an  engrossing  practice,  Judge  Bradley  found  the  double 
work  of  a  practitioner  and  a  Professor  too  much  for  his  strength, 
and  reluctantly  came  to  the  decision  that  he  must  resign  his  Pro- 
fessorship. (2) 

1 I )  There  was  one  especially  encouraging  feature ;   for  the  Dean  re- 
ported : 

"The  quality  of  applicants  for  admission  to  the  School  as  candidates  for 
a  degree  upon  examination  appears  to  be  improving.  In  1877  (the  first 
year  that  an  examination  for  admission  was  held),  there  were  sixteen 
such  applicants,  of  whom  only  seven  were  admitted  wholly  or  in  part 
upon  examinations  passed  by  them  in  Harvard  College.  In  1878,  the 
number  of  applicants  was  fifteen,  of  whom  seven  were  admitted  and  eight 
were  rejected;  and  only  one  of  the  seven  were  excused  from  passing  an 
examination  in  languages  on  account  of  examinations  passed  in  Harvard 
College.  In  1879,  the  number  of  applicants  was  eighteen,  of  whom  twelve 
were  admitted;  and  only  two  of  the  twelve  were  excused  from  passing  an 
examination  in  languages  on  account  of  examinations  passed  in  the  Col- 
lege." 

(2)  The  Report  of  the  Visiting  Committee  to  the  Overseers  for  1878- 
79  said : 

"We  have  suffered  a  great  loss  in  the  resignation  of  Hon.  C.  S.  Brad- 
ley whose  love  of  practice,  teaching  and  whose  national  reputation  added 
to'  the  renown  of  the  School  ...  It  is  still  our  hope  that  Judge  Bradley's 


TRIAL  PERIOD  1871-1881.  411 


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TRIAL  PERIOD  1871-1881.  413 

No  attempt  was  made  to  fill  his  place(i)  ;  but  Henry  Rowland 
(L.  S.  1876-78)  was  appointed,  April  9,  1879,  an  Instructor  to 
give  the  course  in  Torts.  With  the  loss  of  Professor  Bradley, 
the  last  of  the  old-school  teachers  of  law  disappeared.  Professor 
Ames  was  appointed  to  the  Bussey  Professorship,  April  9,  1879. 

The  first  year  and  second  year  courses  remained  the  same  as 
the  previous  year.    Third  year  courses  were  added  as  follows : 
(See  Table  on  the  following  pages.) 

November  u,  1879,  Moot  Courts  were  suspended  for  the  year 
by  vote  of  the  Law  Faculty ;  and  as  Langdell  said  in  his  Report : 

The  immediate  occasion  for  this  vote  was  the  additional 
amount  of  instruction  assumed  by  the  several  Professors,  conse- 
quent upon  the  establishment  of  the  three  years'  course.  It  was 
regarded,  however,  as  an  experiment  which  might  result  in  the 
abolition  of  Moot  Courts  as  a  stated  exercise,  some  of  the  Faculty 
having  long  doubted  the  utility  of  retaining  them.  With  a  view 
to  trying  the  experiment  more  thoroughly,  the  several  instructors 
announced  to  their  classes  their  readiness  to  hear  Moot  Courts  as 
a  voluntary  exercise;  and  the  result  was  that  four  Moot  Courts 
were  held  during  the  year,  one  by  each  of  the  Professors.  .  .  . 

For  some  years  the  interest  in  these  Courts  among  the  students 
had  been  dying  out.  The  Visiting  Committee  had  reported  to  the 
Overseers,  in  1878,  through  Oliver  Wendell  Holmes,  Jr. : 

It  is  still  ground  for  regret  that  Moot  Courts  attract  less  atten- 
tion than  formerly.  The  fact  is  in  part  due  to  the  improved 
organization  of  the  Club  Courts  where  it  is  now  the  practice  to 
have  a  bench  of  several  judges  instead  of  one  as  formerly.  This 

place  may  be  permanently  filled  by  one  who  like  him  combines  large  ex- 
perience and  high  reputation  with  technical  skill  in  teaching." 

Of  Bradley's  resignation,  the  American  Laiv  Review  said  (Vol.  XIII)  : 

"This  is  matter  for  great  regret.  He  has  held  the  place  for  three  years 
with  much  advantage  to  the  School.  Chief  Justice  Bradley  has  never, 
since  he  was  first  invited  to  Cambridge,  given  ground  for  any  confident 
belief  that  he  should  permanently  remain ;  but  it  was  nevertheless  hoped 
that  he  might  be  induced  to  do  so.  ... 

The  chance  of  securing  men  of  his  experience  and  distinction  as  per- 
manent instructors  at  the  Law  School  seems  to  be  less  than  it  used  to  be. 
But  it  is  to  be  hoped  that  the  authorities  of  the  University  will  not  be  in- 
sensible to  the  great  importance  of  it." 

(i)  In  1881,  the  American  Law  Review  in  a  review  of  Benjamin  R. 
Curtis'  Jurisdiction,  Practice  and  Peculiar  Jurisprudence  of  Courts  of 
the  United  States  said  (Vol.  XV)  : 

"Few  things  are  better  for  a  young  man  than  to  be  brought  face  to  face 
with  a  master  in  his  profession  to  witness  the  working  of  his  mind  to  hear 
the  expression  of  his  doubts  and  his  criticisms. 

But  then  it  must  be  a  master — one  such  there  is  in  Boston  to-day  and 
one  in  New  York.  Why  will  not  Harvard  College  secure  for  its  law  stu- 
dents a  course  of  lectures  from  Mr.  Bartlett  or  Mr.  O'Conor?" 


414  HARVARD  LAW  SCHOOL. 

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416  HARVARD  LAW  SCHOOL. 

adds  to  the  interest  and  thoroughness  of  the  discussion;  and,  as 
the  students  are  engaged  in  cases  very  frequently,  the  Club  Courts 
are  more  important  than  those  presided  over  by  the  Professors, 
where  the  superiority  of  the  judge  is  offset  by  the  rare  recurrence 
of  opportunities  for  any  one  person  to  be  heard. 

Your  committee  are  of  the  opinion  that  the  practice  of  drawing 
counsel  by  lot  instead  of  specially  assigning  them  as  was  formerly 
the  practice  is  one  of  the  causes  of  the  little  interest  now  felt.  ( I ) 

It  may  be  noted  here  that  the  Moot  Courts  were  resumed  in 
1880-81 ;  but  were  finally  discontinued  after  March,  1897. 

The  year  1 880-81  was  again  one  of  comparative  uncertainty 
and  depression. 

The  number  of  students  connected  with  the  School  dropped  to 
the  lowest  point  since  1874-75,  being  only  161,  with  an  average 
149.  The  chief  decrease  seemed  to  be  in  the  number  of  Harvard 
graduates  applying  for  admission. 

Dean  Langdell,  however,  was  not  discouraged.  (2) 

(1)  The  practice  of  selecting  counsel  by  lot,  the  senior  counsel  to  be 
drawn  from  those  students  who  had  passed  the  examinations  of  the  first 
year  had  been  initiated  by  vote  of  the  Law  Faculty,  Oct.  9,  1874. 

The  following  is  a  table  showing  the  decrease  in  the  Moot  Courts. 
1870-71  once  a  week  during  the  year. 
1871-72    28. 
1872-73    24. 
1873-74     19- 
1874-75    21. 
1875-76    21. 
1876-77     19- 
1877-78     16. 

1878-79    15- 

(2)  In  his  Report  for  1880-81,  the  Dean  said: 

"The  three  years'  course  cannot  yet  be  pronounced  an  entire  success. 
It  is  true  that  another  strong  measure  went  into  operation  at  the  same 
time  as  the  three  years'  course,  namely,  the  examination  for  admission ;  but 
the  latter,  while  it  has  reduced  largely  the  number  of  candidates  for  a 
degree,  has  not  reduced  the  total  numbers  of  the  School  so  much  as  it 
was  expected  to  do ;  a  large  number  of  those  who,  but  for  the  examina- 
tion for  admission, would  have  entered  as  candidates  for  a  degree,  having 
entered  as  special  students.  It  is  also  true  that  there  has  not  been  a 
great  falling  off  in  the  number  of  new  men  entering  the  School  in  each 
year,  especially  if  it  be  borne  in  mind  that  the  number  of  new  entries,  dur- 
ing the  two  years  preceding  the  date  when  the  three  years'  course  went 
into  operation  (September,  1877),  was  abnormally  large.  In  other  words, 
it  does  not  appear  that  the  three  years'  course  has  prevented  any  consid- 
erable number  of  men  from  entering  the  School.  .  .  . 

It  was  fully  expected,  when  the  three  years'  course  and  the  examination 
for  admission  were  established,  that  their  combined  effect  would  be  to 
reduce  largely  for  a  time  the  number  of  students  in  the  School ;  but  how 
great  this  effect  would  be,  which  of  these  measures  would  have  the  most 
agency  in  producing  it,  and  in  what  particular  way  it  would  be  produced, 
could  not  of  course  be  foretold  with  any  certainty.  In  some  respects  the 
expectations  which  were  formed  have  not  been  justified  by  experience. 


TRIAL  PERIOD  1871-1881.  417 

The  problem  before  the  School  at  this  time  was  to  devise  some 
measures  by  which  the  degree  of  LL.B.  and  the  third  year  course 
needed  to  attain  it  might  be  made  more  attractive.  Two  suggestions 
were  made  by  the  Dean — an  increase  in  the  amount  of  instruction, 
and  an  increase  in  the  number  of  scholarships  for  the  benefit  of 
students  unable  to  bear  the  heavy  expenses  of  a  three  year  course. 

Unfortunately  the  pecuniary  conditions  of  the  School  was  not 
such  as  to  make  possible  either  of  these  improvements.  The  Cor- 
poration had  no  funds  to  pay  another  Professor,  or  even  to  fill 
the  now  vacant  Professorship.  Expenses  were  already  exceeding 
income.  Although  one  hundred  and  twenty  scholarships  had 
been  established  in  the  College,  mostly  from  gifts,  "not  a  dollar 
had  ever  been  given  by  anyone  towards  furnishing  pecuniary  aid 
to  students  in  the  Law  School,"  outside  of  the  four  Bussey 
Scholarships  established  by  the  Corporation.  "More  scholarships 
would  enable  the  School  to  draw  annually  from  the  different  col- 
leges"— said  the  Dean — "a  few  of  their  ablest  and  most  promising 
men,  whom  it  now  has  no  chance  of  obtaining." 

Without  some  such  attraction  as  additional  scholarships,  the 
Dean  was  inclined  to  believe  that  the  three  year  course  could  not 
be  a  success.  Mere  opportunity  for  additional  instruction  did  not 
seem  to  be  able  to  hold  the  students. 


For  example,  the  number  who  pass  the  examination  for  admission  is 
much  smaller  than  was  anticipated;  but,  on  the  other  hand,  the  number 
who  enter  as  special  students  is  much  larger  than  was  anticipated.  So 
in  regard  to  the  three  years'  course:  it  was  expected  to  deter  men  from 
entering  the  School  rather  than  to  cause  them  to  leave  before  completing 
the  course ;  and  it  was  hoped  that  a  third-year  class  would  compensate 
largely  for  the  falling  off  in  the  number  of  new  entries.  In  a  word,  it 
was  not  anticipated  that  these  two  measures  would  have  their  greatest  ef- 
fect in  reducing  the  ratio  of  those  who  take  the  degree  to  the  whole  num- 
ber who  enter  the  School.  Such,  however,  is  the  result  of  our  experience 
thus  far.  It  is  our  degree,  therefore,  if  anything,  that  is  in  immediate 
danger." 

(i)  "The  great  value  of  a  few  such  men  added  to  the  School  would 
consist  partly  in  the  influence  that  they  would  have  upon  the  School  it- 
self, and  partly  in  the  increased  reputation  that  they  would  soon  give  the 
school  throughout  the  country.  The  influence  they  would  have  in  the 
School  would  be  of  great  immediate  and  certain  value.  Individual  stu- 
dents in  such  a  School  are  governed  largely  in  their  opinions  and  actions 
by  what  may  be  called  the  public  opinion  of  the  School,  and  in  forming 
the  opinion  a  few  of  the  most  prominent  students  are  chiefly  influential. 

It  must  always  be  remembered  that  the  Law  School  can  only  accom- 
plish its  objects  fully  by  means  of  students  of  high  grade,  and  that  the 
supply  of  such  students  is  very  limited  in  number  at  best ;  and  if  from 
this  limited  number  must  be  subtracted  all  those  who,  having  already  in- 
curred the  expense  of  a  good  college  education,  cannot  afford  the  heavy 
additional  expense  of  three  years  in  the  Law  School,  the  number  from 
which  the  School  can  draw  will  be  small  indeed." 
27 


418  HARVARD  LAW  SCHOOL. 

There  were  now  twenty-nine  hours  of  instruction,  as  against 
ten  hours,  prior  to  1870.  The  number  of  elective  studies  had 
already  been  increased ;  but  the  students  seemed  inclined  to  crowd 
the  bulk  of  the  work  intended  for  three  years  into  two.  The 
course  of  instruction  remained  practically  the  same,  this  year,  as 
before,  with  the  addition  of  a  course  on  Evidence  by  Professor 
Thayer  and  on  Trusts  and  Mortgages  by  Professor  Ames,  as 
elective  in  the  third  year.  Mr.  Howland  continued  as  Instructor 
in  Torts.  In  this  year,  Professor  Ames  published  in  collected 
book  form  his  Cases  on  Bills  and  Notes;  and  in  the  preface  dated 
June  i,  1881,  he  said :  'That  the  innovation  in  the  method  of  legal 
education  has  proved  a  marked  success  in  the  Harvard  Law 
School  is  well  known  to  all  those  who  are  familiar  with  the  history 
of  the  School  during  the  last  ten  years,"  and  he  gracefully,  though 
perhaps  too  modestly,  gave  added  credit  to  Professor  Langdell  for 
parts  of  the  valuable  "Summary"  attached  to  the  book  by  stating, 
"It  is  only  just  to  say  that  the  credit  of  very  much  of  what  seems 
in  this  edition  the  most  valuable  part  of  the  summary  belongs  not 
to  the  pupil  but  to  the  master." 


CHAPTER  XLIII. 
WHAT  THE  CASE  SYSTEM  REALLY  Is. 

Of  the  Langdell  System,  Professor  Baldwin,  who  is  by  no 
means  an  adherent,  correctly  says,  that  it  is  fundamentally  differ- 
ent from  that  which  had  ever  prevailed  at  any  seat  of  legal  learn- 
ing in  the  history  of  the  world.  Less  correctly,  he  describes  it 
as,  "a  new  theory  of  legal  instruction,  according  to  which  its  main 
end  from  the  beginning  should  be  to  encourage  and  assist  the 
student  in  the  study  and  analysis  of  judicial  precedents  and  he 
should  be  left  to  pick  up  and  arrange  the  elementary  principles  of 
law,  as  he  best  can,  for  himself".(i) 

In  order  to  appreciate  correctly  the  Langdell  System,  it  is  neces- 
sary to  understand  first  what  that  system  was  intended  to  develop. 
Much  of  the  misunderstanding  and  many  of  the  attacks  upon 
Professor  Langdell's  theories  have  arisen  from  a  difference  in  the 
views  of  the  proposed  object  of  legal  education.  One  body  of 
legal  teachers  proceeds  on  the  theory  that  the  object  of  a  law 
school  should  be  exclusively,  "to  teach  a  student  the  law/'  This 
view  was  expressed  by  Edmund  Wetmore,  President  of  the 
American  Bar  Association,  when  he  said:  "The  primary  object  of 
legal  instruction  is  to  teach  the  student  what  the  law  is  upon  a 
sufficiently  large  number  of  topics,  to  give  him  a  general  knowl- 
edge of  all  its  most  important  branches." 

With  this  standpoint,  the  Harvard  Law  School  teachers  have 
little  in  common.  They  believe  that,  "that  method  which  best 
trains  the  student  in  legal  thinking  and  in  legal  reasoning  is 
necessarily  the  best  method  for  the  student  of  law". (2)  As  Pro- 
fessor Ames  recently  said  (3)  : 

We  seem  to  differ  radically  as  to  the  object  of  the  three  years 
at  the  Law  School.  I  should  infer  from  the  paper  that  the  au- 
thor's object  was  knowledge.  The  object  held  up  by  us  at  Cam- 


(1)  The   Study   of  Elementary  Law,   by   S.    E.    Baldwin,    Yale   Law 
Journal,  Vol.  XIII    (1903). 

(2)  See  Paper  by  James  Brown  Scott  in  American  Law  School  Review, 
Vol.  II   (1906). 

(3)  Address  before  the  Association  of  American  Laiv  Schools 


420  HARVARD  LAW  SCHOOL. 

bridge  is  the  power  of  legal  reasoning,  and  we  think  we  can  best 
get  that  by  putting  before  the  students  the  best  models  that  can 
be  found  in  the  history  of  English  and  American  law,  because 
we  believe  that  men  who  are  trained,  after  examining  the  opinions 
of  the  greatest  judges  that  the  English  Common  Law  system  has 
produced,  are  in  a  better  position  to  know  what  legal  reasoning  is 
and  are  more  likely  to  possess  the  power  of  solving  legal  problems 
than  they  would  be  by  taking  up  the  study  of  the  law  of  any 
particular  State.  In  my  own  case,  I  am  sometimes  asked  by  first- 
year  men  what  the  law  of  Massachusetts  is  on  the  point  under 
discussion,  and  I  always  tell  them  that  sitting  in  this  chair  I  do 
not  know,  but  that  if  they  speak  to  me  after  the  hour  I  will  tell 
them.  That  is  to  say,  our  School  aims  above  all  things  to  be  a 
national  school  and  not  a  local  school. 

Training  in  legal  reasoning  and  the  acquirement  of  knowledge 
of  legal  principles  by  study  of  cases,  is  what  the  teachers  of  law 
at  Harvard  seek  to  give  to  their  students.  No  one  has  better  ex- 
pressed the  need  of  this  teaching  of  fundamentals  than  Edward  J. 
Phelps,  formerly  Professor  of  Law  at  Yale  ( i )  : 

If  I  were  to  frame  a  law  school  upon  my  own,  old-fashioned 
idea  of  what  it  should  be,  it  would  attract  no  students.  It  would 
be  like  the  common  school  by  the  side  of  the  academy.  The 
slenderness  of  its  library — small  but  well  selected,  rich  principally 
in  what  it  did  not  contain,  and  jealous  of  new  accessions — the 
simplicity  of  its  curriculum,  the  moderation  of  its  speed,  the  ap- 
parent modesty  of  its  extent  of  attainment,  would  be  likely  to 
excite  derision.  Such  was  the  school  which  I  had  the  advantage 
of  attending  in  the  happy  days  of  my  youth.  Out  of  such  schools, 
and  from  the  same  system  of  instruction  outside  of  them,  have 
come  a  large  proportion  of  the  greatest  lawyers  I  have  ever  seen, 
or  ever  expect  to  see.  What  was  taught  there  was  only  funda- 
mental, but  it  was  .taught  effectually.  It  sank  into  the  student's 
mind,  and  wrought  itself  into  his  ideas  and  his  modes  of  thought. 
The  habit  of  reasoning  from  principles  to  conclusions  gave  him, 
if  he  was  capable  of  attaining  it,  the  large  comprehension  and 
the  logical  power  which  are  the  characteristics  of  the  sound  law- 
yer, and  the  true  weapons  of  the  advocate.  On  the  foundation 
thus  formed,  the  superstructure  can  be  rapidly  built  in  after  life. 
To  a  mind  so  trained,  no  legal  propositions  however  new  will  be 
difficult ;  no  complication  of  facts,  however  unusual,  will  em- 
barrass the  application  of  the  rules  of  law,  or  put  justice  out  of 
court.  Beware  the  man  of  one  book  is  an  old  proverb.  Beware 
of  the  lawyer  of  few  books,  wisely  chosen  and  entirely  under- 

(i)  Methods  of  Legal  Education,  by  Edward  J.  Phelps,  Yale  Law 
Journal,  Vol.  I  (1892). 


THK  CASK  S  VST  KM.  421 

stood,  is  a  good  adaptation  of  the  proverb  to  the  matter  in  hand. 
Asking  lately  the  leader  of  the  Connecticut  liar  how  it  came  to 
pass  that  the  lawyers  who  framed  the  United  States  Constitution 
had  obtained  such  a  mastery  of  legal  principles  and  such  a  clean- 
ness in  the  expression  of  them  as  are  there  displayed,  he  replied 
"Why.  they  had  so  few  books!" 

What  the  Langdell  System  is  can  best  be  told  in  the  words  of  its 
prominent  exponents  in  the  Harvard  Law  School. 

Professor  William  A.  Keener  thus  stated  it  in  1888(1)  : 

While  this  method  of  teaching  does  not  at  all  proceed  on  the 
idea  that  the  Common  Law  is  wanting  in  jurists,  its  advocates 
regard  the  adjudged  cases  as  the  original  sources  of  our  law, 
and  think  that  it  is  better  for  the  student,  under  proper  advice 
and  guidance,  to  extract  from  the  cases  a  principle,  than  to  accept 
the  statement  of  any  jurist,  however  eminent  he  may  be.  that  a 
certain  principle  is  established  by  certain  cases.  When  the 
student  has  by  the  study  of  cases  grasped  a  principle,  it  ha> 
assumed  to  him  a  concrete  form,  and  he  can  apply  it.  because  it 
was  by  studying  it  in  its  application  that  he  has  acquired  his 
knowledge.  Lender  this  system  the  student  must  look  upon  law 
as  a  science  consisting  of  a  body  of  principles  to  be  found  in  the 
adjudged  cases,  the  cases  being  to  him  what  the  specimen  is  to  the 
geologist.  .  .  .  This  method  of  teaching  does  not  consist  in 
lectures  by  the  instructor  with  references  to  the  cases  in  support 
of  the  propositions  stated  by  him.  The  exercises  in  the  lecture 
room  consist  in  a  statement  and  discussion  by  the  students  of 
the  cases  studied  by  them  in  advance.  This  discussion  is  under 
the  direction  of  the  instructor,  who  makes  such  suggestions  and 
expresses  such  opinions  as  are  necessary. 

The  student  is  required  to  analyze  each  case,  discriminate  be- 
tween the  relevant  and  irrelevant,  between  the  actual  and  possible 
grounds  of  decision.  And  after  having  thus  discussed  a  case,  he 
is  prepared  and  required  to  deal  with  it  in  its  relation  to  other 
cases. 

In  other  words  the  student  is  practically  doing,  as  a  student, 
what  he  will  be  constantly  doing  as  a  lawyer.  By  this  method, 
the  student's  reasoning  powers  are  constantly  developed :  and 
while  he  is  gaining  the  power  of  legal  analysis  and  synthesis,  he 
is  also  gaining  the  other  object  of  legal  education — namely,  a 
knowledge  of  what  the  law  actually  is. 

And  again,  in  1894,  Professor  Keener  described  it  as  being 
based  on  the  following  conclusions (2)  : 

(1)  Preface  to  A  Selection  of  Cases  on   the  Lazv  of  Quasi  Contracts, 
by  W.  A.  Keener  (1888). 

(2)  The   Inductire   Method   in   Legal  Education,  by   \Y.   A.   Keener — 
Amer.  Law  Rev.,  Vol.  XXVIII    (1894). 


422  HARVARD  LAW  SCHOOL. 

I.  That  law,  like  other  applied  sciences,  should  be  studied  in 
its  application,  if  one  is  to  acquire  a  working  knowledge  thereof. 
2.  That  this  is  entirely  feasible,  for  the  reason  that,  while  the 
adjudged  cases  are  numerous,  the  principles  controlling  them 
are  comparatively  few.  3.  That  it  is  by  the  study  of  cases  that 
one  is  to  acquire  the  power  of  legal  reasoning,  discrimination, 
and  judgment,  qualities  indispensable  to  the  practicing  lawyer.  4. 
That  the  study  of  cases  best  develops  the  power  to  analyze  and  to 
state  clearly  and  concisely  a  complicated  state  of  facts,  a  power 
which  in  no  small  degree  distinguishes  the  good  from  the  poor 
and  indifferent  lawyer.  5.  That  the  system,  because  of  the  study 
of  fundamental  principles,  avoids  the  danger  of  producing  a 
mere  case  lawyer,  while  it  furnishes,  because  the  principles  are 
studied  in  their  application  to  facts,  an  effectual  preventive  of  any 
tendency  to  mere  academic  learning.  6.  That  the  student,  by  the 
study  of  cases,  not  only  follows  the  law  in  its  growth  and  develop- 
ment, but  thereby  acquires  the  habit  of  legal  thought,  which  can  be 
acquired  only  by  the  study  of  cases,  and  which  must  be  acquired 
by  him  either  as  a  student,  or  after  he  has  become  a  practitioner, 
if  he  is  to  attain  any  success  as  a  lawyer.  7.  That  it  is  the  best 
adapted  to  exciting  and  holding  the  interest  of  the  student,  and  is, 
therefore,  best  adapted  to  making  a  lasting  impression  upon  his 
mind.  8.  That  it  is  a  method  distinctly  productive  of  individual- 
ity in  teaching  and  of  a  scientific  spirit  of  investigation,  indepen- 
dence, and  self-reliance  on  the  part  of  the  student. 

.  .  .  The  distinctive  feature  of  the  Case  System  is  not  the 
exclusive  use  of  cases  but  that  the  reported  cases  are  made  the 
basis  of  instruction,  not  used  merely  as  illustration.  .  .  .  The 
object  of  the  Case  System  is  not  to  have  students  memorize  cases, 
but  to  analyze  them. 

And  again,  in  1892,  Professor  Keener  explained  with  much 
clearness  what  the  Case  System  was  not(i)  : 

1.  It  does  not  consist  in  the  study  of  isolated  propositions  of 
law. 

2.  It  does  not  proceed  on  the  theory  that  the  law  consists  of  an 
aggregation  of  cases. 

3.  It  does  not  proceed  on  the  theory  that  to  learn  law  one  must 
memorize  cases. 

4.  It  does  not  proceed  on  the  theory  that  law  is  to  be  taught  or 
learned  in  a  law  school  by  the  reading  of  cases  merely. 

5.  It  does  not  leave  the  student  to  deduce  the  principles  of  law 
from  the  cases  by  himself.     .     .     . 

The  Case  System  consists  in  putting  into  the  hands  of  the  stu- 
dent a  number  of  cases  on  any  given  subject,  taken  not  at  hap- 


(i)     Methods  of  Legal  Education,  by  W.  A.  Keener,  Yah  Law  Journal, 
Vol.   I    (1892). 


THE  CASE  SYSTEM.  423 

hazard  but  selected  by  the  professor  with  a  view  to  developing 
the  law  on  that  subject.  The  theory  on  which  this  proceeds  is 
that  it  is  only  by  regarding  law  as  a  science  that  one  can  justify 
its  being  taught  in  a  University,  and  regarding  it  as  a  science,  the 
student  should  not  only  be  encouraged  to  investigate  the  law  in  its 
original  sources,  but  should  be  distinctly  discouraged  from 
regarding  as  law,  what  is,  in  fact,  simply  the  conclusions  of 
writers  whose  opinions  are  based  upon  the  material  to  which  the 
student  can  be  given  access. 

The  Case  System  then  proceeds  on  the  theory  that  law  is  a 
science  and  as  a  science  should  be  studied  in  the  original  sources, 
and  that  the  original  sources  are  the  adjudged  cases,  and  not  the 
opinions  of  text  writers  based  upon  the  adjudged  cases. 

But  the  law  is  an  applied  science,  and  therefore  to  appreciate 
thoroughly  the  principle  involved  in  a  given  topic,  the  student 
should  deal  with  it  in  its  application,  and  as  he  learns  these  prin- 
ciples in  their  application,  they  are  not  a  mere  abstraction,  but 
have  assumed  a  concrete  form,  and  he  is  prepared  to  apply  them 
in  mastering  new  problems.  .  .  .  From  my  explanation  of 
the  system  it  is  evident : 

1.  That  it  is  not  open  to  the  charge  of  regarding  the  law  as  a 
mere   aggregation   of   cases.      Indeed   the   system   rests   on   the 
fundamental  doctrine  that  while  the  adjudged  cases  are  numer- 
ous the  principles  controlling  them  are  comparatively  few  and 
can  and  should  be  thoroughly  mastered. 

2.  That  it  does  not  proceed  on  the  theory  of  learning  law  by 
the  reading  of  cases  only,  as  the  student  has  the  constant  help  of 
the  instructor  by  way  of  suggestion,  criticism  and  the  formal 
statement  of  proposition  of  law. 

3.  That  the  system  cannot  be  open  to  the  objection  that  the 
student  is  required  to  deduce  the  principles  from  the  cases  by 
himself     .     .     . 

4.  That  instead  of  involving  the  memorizing  of  a  lot  of  cases, 
the  danger  to  guard  against  is  that  the  student  may  not  have  a 
sufficient  regard  for  decisions  which  in  his  opinion  are  not  based 
on  principle     .     .     . 

5.  That  as  the  cases  are  selected  to  develop  a  particular  branch 
of  law  nothing  is  more  erroneous  than  to  suppose  that  the  system 
consists  of  the  study  of  isolated  propositions.     To  say  that  the 
study  of  cases  is  only  the  study  of  isolated  principles  is  to  deny 
that  the  law  has  been  developed  through  the  case. 

To  the  accusation  that  the  Case  System  produces  mere  "case 
lawyers,"  Professor  John  C.  Gray  has  made  the  following  ade- 
quate answer  (i)  : 


(i)     Cases  and  Treatises,  by  John  C.  Gray.  Amer.  Law  Review,  Vol. 
XXII    (if" 


424  HARVARD  LAW  SCHOOL. 

There  are  two  things  to  be  acquired  in  a  legal  education ;  first, 
the  knowledge  of  a  certain  number  of  facts ;  second,  the  habit  of 
correct  reasoning  on  legal  questions  with  a  ready  and  accurate 
perception  of  legal  analogies ;  and  the  second  is  much  more  im- 
portant than  the  first.  .  .  .  Much  of  the  criticism  that  has 
been  raised  by  the  study  of  cases  in  the  Harvard  Law  School  has 
been  really  aimed  at  the  subjects  which  have  been  selected  for 
study.  .  .  .  One  other  misunderstanding  has  arisen  from  a 
mere  verbal  similarity.  "I  do  not  believe  in  case-lawyers"  it  has 
been  said  to  me  more  than  once,  as  if  that  were  a  knock-down 
argument  against  the  method  of  study  by  cases.  By  a  "case- 
lawyer"  I  suppose  is  generally  meant  a  lawyer  who  has  a  great 
memory  for  the  particular  circumstances  of  cases,  but  who  is 
unable  to  extract  the  underlying  principles.  But  the  "Case  Sys- 
tem" has  no  tendency  to  produce  lawyers  of  this  type.  ....  It 
uses  the  cases  merely  as  material  from  which  the  student  may 
learn  to  extract  the  underlying  principles.  .  .  .  The  expres- 
sion "Case  System"  suggests  a  hidebound  and  stereotyped  mode 
of  instruction.  Nothing  can  be  further  from  the  truth.  .  .  . 
The  styles  of  teaching  of  the  different  Professors  are  as  unlike  as 
possible.  We  agree  only  in  making  cases,  not  text  books,  the 
basis  of  instruction.  ...  I  am  far  from  thinking  that  the 
method  of  case  study  as  practised  at  Cambridge  is  the  final  word 
on  legal  education.  .  .  .  All  I  contend  is  that  the  method  of 
study  by  cases  is  the  best  form  of  legal  education  that  has  yet  been 
discovered.  I  should  be  sorry  indeed  if  anything  I  might  say 
would  seem  to  disparage  the  former  mode  of  instruction  in  the 
Harvard  Law  School.  If  the  tone  of  the  School  has  been  raised, 
it  is  due  more  to  the  three  series  of  severe  annual  examinations 
required  for  a  degree  than  to  any  change  in  the  mode  of  study. 

Although  an  important  object  of  education  is  to  tell  the  student 
what  others  have  found  out,  a  more  important  object  is  to  teach 
him  to  find  things  for  himself.  .  .  .  And  in  law,  no  better 
way  has  yet  been  devised  to  make  the  student  work  for  himself, 
than  to  give  him  a  series  of  cases  on  a  topic,  and  compel  him  to 
discover  the  principles  which  they  have  settled  and  the  process  by 
which  they  have  been  evolved.  A  young  man,  thus  trained, 
not  only  learns  the  Common  Law,  but  he  is  imbued  with  its  his- 
torical and  progressive  spirit.  .  .  .  To  begin  with  text  books 
is  to  begin  at  the  wrong  end. 

The  methods  by  which  the  Case  System  is  applied  in  actual 
operation  were  described  by  Professor  James  B.  Thayer,  in  a 
discussion  before  the  American  Bar  Association,  in  1895,  as 
follows(i)  : 

The  Case  System  at  Harvard  is  not  a  method  or  system  of 


(r)     See  Amer.  Bar  Assn.  Proc.,  Vol.  XVIII  (1895)- 


THE  CASE  SYSTEM.  425 

teaching.  It  is  a  system  of  studying  law.  The  whole  essence  of 
the  Case  System  as  we  understand  it  at  Harvard  is  that  instead  of . 
placing  in  the  hands  of  a  student  a  text  book  on  which  he  has 
to  prepare  himself  for  the  exercises  with  the  instructor  there  is 
placed  in  his  hands  a  very  carefully  chosen  series  of  cases  select- 
ed by  an  expert  and  he  is  expected  to  prepare  himself  upon  them. 
The  whole  essence  of  the  Case  System  lies  then  in  this  prepara- 
tory study  of  the  subject  in  hand  by  very  carefully  selected  cases. 

In  regard  to  the  teaching  and  the  instruction  I  may  mention 
that  at  Harvard  where  I  have  been  for  twenty-one  years  nearly, 
and  where  Dr.  Langdell  has  been  for  a  period  of  twenty-five 
years,  there  has  not  been  a  moment  when  there  has  not  been 
every  variety  of  method  of  instruction.  Every  instructor  uses 
his  own  method. 

For  many  years  I  lectured,  although  I  used  the  Case  System. 
At  present  my  method — and  it  is  the  more  common  method  of  the 
School,  is  that  of  questioning  the  men  on  the  cases.  The  whole 
exercise  is  frequently  taken  up  with  questions  on  both  sides  from 
the  students  to  the  instructor  as  well  as  from  the  instructor  to  the 
student  on  the  cases  and  there  is  an  abundant  opportunity  for 
remark,  for  comment,  and  for  lecture,  and  there  is  plenty  of  it. 

I  make  mention  of  that  because  I  hope  it  may  correct  a  mis- 
apprehension as  to  the  meaning  of  what  is  called  the  Case  System. 
As  to  the  mode  of  teaching,  there  are  as  many  as  there  are  Pro- 
fessors. 

And  to  the  remark  of  another  Law  Professor  made  in  the 
course  of  the  discussion  that  he  thought  "the  distinction  between 
method  of  teaching  and  method  of  studying  is  more  sound  from 
an  acoustic  sense  than  it  is  in  making  a  real  essential  distinction," 
Professor  Thayer  replied,  that  the  distinction  between  a  method 
of  teaching  and  a  method  of  studying  appeared  in  Cambridge  a 
real  and  very  important  distinction,  and  "while  we  have  always 
had  there  in  recent  years  every  variety  in  methods  of  teaching, 
we  have  long  tried  only  one  method  of  preparatory  study"  by  the 
student. 

And  in  the  preface  to  his  Cases  on  Constitutional  Law  (1895) 
Professor  Thayer  said : 

The  method  of  legal  study  with  which  his  (Langdell's)  name 
is  associated,  regarded  as  a  mere  method  of  investigation,  was 
indeed  no  novelty  at  all ;  lawyers  have  always  known  well  enough 
the  necessity  of  following  it  in  working  out  their  problems.  But 
Dean  Langdell,  early  in  life,  had  the  sagacity  to  apply  it  in  his 
own  self-instruction  in  law,  and  in  his  greatly  valued  help  of 
fellow  students ;  and  when  he  came  back  to  the  School  as  a  Pro- 


426  HARVARD  LAW  SCHOOL. 

fessor,  he  had  the  courage  and  foresight  to  introduce  here  the 
same  method  of  study,  and  to  lay  down  for  himself  a  mode  of 
instruction  which  vigorously  drove  his  pupils  to  adopt  it. 

Of  teaching,  there  has  never  been  at  this  School  any  pre- 
scribed method.  There  never  can  be,  in  any  place  where  the  best 
work  is  sought  for — every  teacher,  as  I  have  said  elsewhere  "in 
law  as  in  other  things  has  his  own  methods,  determined  by  his 
own  gifts  or  lack  of  gifts — methods  as  incommunicable  as  his 
temperament,  his  looks  or  his  manners." 

But  as  to  modes  of  study,  a  very  different  matter,  Dean  Lang- 
dell's  associates  have  all  come  to  agree  with  him,  where  they 
have  ever  differed,  in  thinking,  so  far  at  least  as  our  system  of 
law  is  concerned,  that  there  is  no  method  of  preparatory  study 
so  good  as  the  one  with  which  his  name  is  so  honorably  connect- 
ed— that  of  studying  cases  carefully  chosen  and  arranged  so  as 
to  present  the  development  of  principles.  Doubtless  the  mode  of 
study  must  greatly  affect  the  mode  of  teaching;  if  students  are 
to  prepare  themselves  by  studying  cases  their  teachers  also  must 
study  them. 

And  moreover  while  good  teaching  will  differ  widely  in  its 
methods,  there  is  at  least  one  good  thing  in  which  all  good  teach- 
ing will  be  alike ;  no  teaching  is  good  which  does  not  rouse  and 
"dephlegmatize"  the  students — to  borrow  an  expression  attrib- 
uted to  Novalis — which  does  not  engage  as  its  allies  their  awaken- 
ed, sympathetic,  and  co-operating  faculties.  As  helping  to  that,  as 
tending  to  secure  for  an  instructor  this  chief  element  of  success, 
I  do  not  think  that  there  is  or  can  be  any  method  of  study  which  is 
comparable  with  the  one  in  question. 

Professor  John  C.  Gray  has  also  given  as  interesting  state- 
ment of  the  practical  workings  of  the  system(i)  : 

While  in  most  law  schools  the  text  book  is  the  basis  of  instruc- 
tion, and  the  lecture  and  sometimes  a  reported  case  is  employed 
to  explain  or  illustrate  (or  it  may  be  to  contradict)  the  text  book, 
with  us  the  predominant  mode  of  study  is  to  make  the  reported 
cases  the  basis  of  instruction  and  to  use  oral  instruction  and  the 
consultation  of  text  books  as  aids  in  drawing  out,  formulating 
and  classifying  the  principles  involved  in  the  decisions.  .  .  . 
Among  the  reasons  why  this  practice  has  been  so  generally 
adopted  here  are  the  following : 

(a)  It  accustoms  the  student  to  consider  the  law  not  merely 
as  a  series  of  propositions  having,  like  a  succession  of  problems 
in  geometry,  only  a  logical  independence,  but  as  a  living  thing, 
with  a  continuous  history,  sloughing  off  the  old,  taking  on  the 
new.  The  acquisition  of  this  attitude  towards  the  law  is  likely 

(i)  Methods  of  Legal  Education,  by  John  C.  Gray,  Yale  Lazv  Journal, 
Vol.  I  (1892). 


THE  CASE  SYSTEM.  427 

to  be  deemed  of  fundamental  importance  according  as  a  Profes- 
sor is  a  believer  in  the  Common  Law.  We  are  all  here  firm 
believers  in  it.  We  desire  that  the  students  may  be  filled  with  its 
spirit. 

(b)  The  reading  of  text  books  on  a  subject  of  which  one  as  yet 
knows  nothing  is  dreary  work ;  a  student  is  apt  to  come  from  it 
into  lecture  with  practically  an  empty  mind.     But  we  find  that 
students  in  reading  cases,  whether  they  approve  or  disapprove 
or  are  in  doubt  or  perplexity,  yet  come  into  lecture  interested, 
and  eager  to  express  their  views  or  to  have  their  doubts  deter- 
mined or  their  perplexities  removed.     .     .     . 

(c)  To  extract  law  from  facts  is  the  thing  which  a  lawyer 
has  to  do  all  his  life;  to  do  it  well  makes  the  successful  lawyer; 
to  do  it  pre-eminently  well  makes  the  great  lawyer ;  a  student 
cannot  begin  too  early. 

(d)  Lectures  and  questions  on  lectures  are  apt  to  be  and  per- 
haps necessarily  must  be  adapted  to  the  students  of  slower  appre- 
hensions. 

(e)  Many  bright  young  men  in  school  and  college  develop  an 
extraordinary  capacity  for  having  other  people's  ideas  pumped 
into  them,  and  win  rank  and  reputation  thereby,  but  they  have 
never  intellectually  "labored"  in  their  lives.    Our  mode  of  study 
is  a  sharp  break  in  their  habits  and  traditions.     The  result  is  at 
first  perturbing,  often  amusingly  so,  but  it  is  invariably  salutary. 

(f)  This  dealing  with  actual  cases  is  an  effectual  corrective  to 
unreal  and  fantastic  speculation,  which  is  the  most  dangerous 
tendency  of  academic  education. 

To  the  important  effects  of  this  system  upon  the  Professor 
himself,  Professor  Jeremiah  Smith  has  borne  witness(i)  : 

It  has  been  claimed  for  that  system  again  and  again  that  it  has 
the  merit  of  compelling  the  student  to  work. 

I  can  assure  you,  it  has  also  the  merit  of  compelling  the  instruc- 
tor to  work.  As  a  matter  of  fact  Professor  Langdell's  system 
is  very  hard  on  the  teacher.  We  have  been  accustomed,  most  of 
us,  in  preparing  arguments  on  questions  of  law  before  courts 
of  last  resort,  to  prepare  our  proposition  with  great  accuracy.  I 
speak  advisedly  when  I  say  that  it  requires  a  more  careful  prepar- 
ation to  meet  the  class  under  this  system  in  the  class  room. 

(i)  See  Speech  at  the  Dinner  of  the  Harvard  Law  School  Association, 
in  1801. 


CHAPTER  XLIV. 

THE  LANGDELL  PERIOD  1882-1895. 

) 

Though  the  year  1881-82  showed  no  increase  in  the  number  of 
students,  it  marked  the  turn  in  the  tide  of  the  School's  prosper- 
ity; for  in  that  year  came  the  first  of  the  great  series  of  benefac- 
tions which  have  since  provided  so  ample  an  endowment  for  the 
institution.  In  his  Annual  Report  for  1 880-81,  President  Eliot 
had  pointed  out  that :  "Experience  has  shown  during  the  past  two 
years  that  four  Professors  with  the  aid  of  an  Instructor  in  Torts 
cannot  give  the  amount  and  variety  of  instruction  which  are  need- 
ed to  make  the  three  years  course  as  attractive  and  useful  as  pos- 
sible." The  appointment  of  a  fifth  Professor  was,  however,  im- 
possible, without  more  tuition  fees  or  other  resources.  "The 
best  solution,"  he  said,  "of  the  difficulty  is  the  adequate  endow- 
ment of  a  new  Professorship.  Surely  the  Harvard  Law  School 
has  deserved  well  enough  of  the  community  and  the  profession 
to  count  with  confidence  upon  soon  receiving  this  addition  to  its 
means  of  usefulness." 

Just  a  year  after  this  appeal,  a  generous  benefactor  came  for- 
ward with  an  endowment  of  $90,000 — the  largest  sum  which  had 
ever  been  given  to  the  Law  School.  Record  of  this  gift  was 
made  in  the  Corporation  Records  January  23,  1882  as  follows : 

A  letter  was  presented  from  a  gentleman,  who  requests  that 
his  name  be  withheld  for  at  least  some  years,  offering  to  give  the 
sum  of  $90,000  in  the  form  of  a  note  payable  in  one  year  and 
bearing  interest  at  the  rate  of  5%  as  the  foundation  for  a  new 
Professorship  in  the  Law  School — and  it  was  Voted  that  the 
President  and  Fellows  gratefully  accept  the  generous  and  wel- 
come offer  and  that  they  will  gladly  carry  out  the  wishes  of  the 
donor  as  expressed  in  his  letter.  Voted  to  establish  a  new  Pro- 
fesorship  of  Law  to  be  hereafter  named  in  accordance  with  the 
request  contained  in  the  letter  just  read  to  the  Board. 

} 

To  fill  this  new  Professorship,  Oliver  Wendell  Holmes,  Jr. 
(L.  S.  1864-66)  who  had  already  served  as  a  Lecturer  on  Juris- 
prudence, was  appointed.  For  many  years  in  accordance  with 
the  expressed  wish  of  the  donor,  the  name  of  the  founder  of  this 


LAXGDFLL  PFR1OD.  429 

Professorship  was  kept  a  profound  secret;  but  on   January  30, 
1893,  the  following  vote  appeared  in  the  Corporation  Records: 

The  Treasurer  having  .  .  .  stated  that  the  obligation  of 
secrecy  no  longer  exists  it  was  /  'otcd  that  the  Law  School  Pro- 
fessorship which  was  founded  in  1882  be  hereafter  called  the 
Weld  Professorship  of  Law,  in  memory  of  the  late  "William  F. 
Weld  Junior  who  generously  gave  $90.000  to  found  it ;  but  would 
not  allow  the  name  of  the  giver  to  be  made  known  during  his 
life. 

William  F.  Weld  Jr.,  whose  name  was  then  henceforth  to  be 
ranged  with  those  of  Joseph  Story,  Nathan  Dane  and  Benjamin 
r>ussey.  as  one  of  the  great  benefactors  of  the  Law  School,  was 
born  in  Boston,  February  21,  1855,  graduated  from  Harvard  in 
1876  and  attended  the  Law  School  1876-79.  A  man  of  wealth 
himself,  his  time  was  chiefly  occupied  as  trustee  of  the  estate  of 
his  grandfather,  William  F.  Weld.  He  was  a  passionate  lover  of 
out  door  sports  and  especially  of  yachting,  being  one  of  the 
syndicate,  who,  in  1885,  built  the  cup  defender,  the  "Puritan." 
He  died  January  9,  1893,  leaving  to  Harvard  College,  by  will,  the 
sum  of  $100,000  for  general  purposes. 

In  the  account  of  his  life,  given  in  the  Seventh  Report  of  the 
Class  of  1876,  it  is  said  : 

( 

Weld  was  a  man  of  the  broadest  generosity ;  he  received  his 
greatest  pleasure  from  making  those  about  him  happy.  Xo  one 
who  was  ever  a  guest  on  board  of  his  yacht  or  at  his  house  can 
forget  his  thoughtful  hospitality.  He  had  a  keen  interest  in  pub- 
lic affairs,  in  science,  art,  and  literature  and  his  active  mind  and 
shrewd  common  sense  made  him  a  man  of  influence  wherever  he 
went.  He  looked  at  his  wealth  as  a  trust  fund,  to  be  used  by  him 
in  helping  the  community  in  which  he  lived.  He  was  the  most 
loyal  of  Harvard  men,  and  it  is  pleasant  to  think  that  the  benefac- 
tions which  he  and  his  family  have  heaped  upon  the  College  will 
keep  the  name  of  "\Veld"  dear  to  Harvard  Men. 

One  other  gratifying  addition  to  the  resources  of  the  School 
was  made  this  year  through  the  gift  of  a  fund  for  the  purchasing 
of  books  for  the  Library.  A  number  of  lawyers  interested  in  the 
School  had  sent  out,  during  the  winter,  circulars  calling  the 
attention  of  the  public  to  the  fact  that  the  total  endowment  of 
the  Law  School  was  only  $48.070.63,  while  that  of  the  Scientific 
School  was  $765,519.71,  of  the  Divinity  School  $310,838.90,  and 
of  the  Medical  School  $118.619.18  (after  deducting  the  building 


430  HARVARD  LAW  SCHOOL. 

fund  of  $160,000),  and  urging  the  special  need  of  a  Library 
Fund.  The  circular  in  New  York  was  signed  by  John  O.  Sar- 
gent, Thomas  B.  Eaton  (L.  S.  1849-50),  William  G.  Choate 
(L.  S.  1852-54),  Addison  Brown  (L.  S.  1853-55),  James  C.  Car- 
ter (L.  S.  1851-53),  Joseph  H.  Choate  (L.  S.  1852-54),  Charles 
C.  Beainan,  Jr.  (L.  S.  1864-65).  In  Boston,  Professor  James  B. 
Thayer  and  Louis  D.  Brandeis  were  chiefly  influential  in  raising 
the  desired  funds. (i) 

In  the  Treasurer's  Report  of  Aug.  31,  1883,  it  appeared  that 
the  fund  amounted  to  $32,021.25,  of  which  $6,791.25  had  been 
paid  in.  One  remarkable  feature  of  this  fund  lay  in  the  fact 
that  $6,641.25  of  the  amount  paid  in  was  given  by  Henry  Villard, 
of  New  York,  a  man  who  was  not  a  graduate  of  the  College  or 
of  the  Law  School.  It  later  appeared  that  Mr.  Villard  had 
agreed  to  contribute  $25,000.  After  he  had  paid  in  $10,000,  the 
financial  reverses  of  the  Northern  Pacific  Railroad,  in  which  he 
was  interested,  occurred  in  1883-84,  obliging  him  to  discontinue 
his  payments.  In  1888,  however,  he  wrote  to  Professor  Thayer 
offering  to  pay  the  remaining  $15,000  which  was  due 5(2)  and 
the  Library  Book  Fund  finally  rose  to  $47,021.25  (see  Treasur- 
er's Report  of  Aug.  31,  1907). 

The  year  1882-83  was  not  a  prosperous  one  for  the  School, 
the  number  of  students  falling  to  138,  the  lowest  since  1871-72, 

In  the  field  of  instruction,  several  changes  occurred,  the  most 
important  being  the  accession  of  the  new  Professor. 

Oliver  Wendell  Holmes,  Jr.,  was  born  March  8,  1841,  at 
Boston,  the  son  of  Rev.  Oliver  Wendell  Holmes,  and  the  grandson 
of  Judge  Charles  Jackson  and  of  Rev.  Abiel  Holmes.  He  gradu- 
ated from  Harvard  in  1861.  After  enlisting  in  the  Fourth  Bat- 
talion of  Infantry  in  April,  he  became  successively  lieutenant,  cap- 
tain and  lieutenant-colonel  of  the  2Oth  Massachusetts  Infantry  and 
aide  de  camp  to  Major  General  H.  G.  Wright  of  the  Sixth  Corps. 
He  studied  in  the  Harvard  Law  School  from  1864  to  1866  and 


(1)  On  Feb.  27,  1882,  the  following  vote  appeared  on  the  Corporation 
Records :  "A  letter  was  read  from  Professor  James  B.  Thayer  reporting 
subscriptions  to  the  amount  of  $13,750  towards  a  fund  of  which  the  income 
shall  be  used  for  the  purchase  of  books  for  the  Law  School  and  stating 
that  further  subscriptions  would  doubtless  be  made. 

Voted  to  establish  a  new  fund  to  be  called  the  Law  School  Book  Fund." 
The  Corporation  further  extended  its  thanks  to  the  subscribers  for  their 
generously  and  timely  gifts. 

(2)  See  Speech  of  James  B.  Thayer  at  dinner  of  Harvard  Law  School 
Association,  June  27,  1888. 


LANGDELL  PERIOD.  431 

was  admitted  to  the  Bar  in  1867.  In  1873,  he  became  a  member 
01  the  firm  of  Shattuck,  Holmes  and  Munroe.  In  1870  and  1871, 
he  was  a  Lecturer  in  Harvard  College  on  Constitutional  Law ;  in 
1871-72  and  1872-73,  Lecturer  in  the  Law  School  on  Juris- 
prudence. In  1873,  ne  edited  the  I2th  Edition  of  Kent's  Com- 
mentaries, and  from  1870  to  1873  was  editor  of  the  American  Law 
Revictv  (Vols.  V,  VI  and  VII).  In  1881,  he  published  The  Com- 
mon Law.  On  taking  up  his  Law  School  duties,  he  gave 
a  course  in  First  Year  Torts,  Third  Year  Suretyship  and  Mort- 
gages, Third  Year  Jurisprudence  and  Third  Year  Agency  and 
Carriers.  Professor  Thayer  was  in  Europe  on  a  vacation  and 
three  young  Instructors  took  his  place:  Louis  D.  Brandeis  (L. 
S.  1875-78,  appointed  April  10,  1882)  who  gave  a  course  in 
Second  Year  Evidence;  Franklin  G.  Fessenden  (L.  S.  1870-73, 
appointed  April  10,  1882),  who  gave  a  course  in  First  Year 
Criminal  Law  and  Procedure;  and  Charles  W.  Barnes  (L.  S. 
1877-80,  appointed  October  9,  1870),  who  gave  courses  on  Second 
and  Third  Year  Sales;  Brooks  Adams  (L.  S.  1871-72,  appointed 
June  21,  1882),  who  gave  a  course  on  Third  Year  Constitutional 
Law.  A  new  course  on  the  Law  of  Persons  was  given  by  Pro- 
fessor Gray. 

Professor  Holmes'  career  as  Professor  was  cut  short  by  his 
appointment  as  a  Judge  of  the  Massachusetts  Supreme  Court, 
and  he  resigned  his  chair,  January  8,  1883. 

Of  his  teaching,  he  has  given  the  following  interesting 
sketch(i)  : 

During  the  short  time  that  I  had  the  honor  of  teaching  in  the 
School,  it  fell  to  me,  among  other  things,  to  instruct  the  First 
Year  men  in  Torts.  With  some  misgivings,  I  plunged  a  class 
of  beginners  straight  into  Mr.  Ames'  collection  of  cases,  and  we 
began  to  discuss  them  together  in  Mr.  Langdell's  method.  The 
result  was  better  than  I  even  hoped  it  would  be.  After  a  week 
or  two,  when  the  first  confusing  novelty  was  over,  I  found  that 
my  class  examined  the  questions  proposed,  with  an  accuracy  of 
view  which  they  never  could  have  learned  from  text  books,  and 
which  often  exceeded  that  to  be  found  in  the  text  books.  I  at 
least,  if  no  one  else,  gained  a  good  deal  from  our  daily 
encounters. 

After  much  discussion  in  the  Faculty  and  the  governing  Boards 

(i)  See  Oration  at  the  Law  School  Day,  Nov.  5,  1886,  at  the  Commemo- 
ration of  the  25oth  Anniversary  of  the  Founding  of  Harvard  College. 


432  HARVARD  LAW  SCHOOL. 

of  the  University,  the  vacancy  caused  by  Professor  Holmes' 
resignation  was  filled,  May  14,  1883,  by  the  election  of  William  A. 
Keener. 

Mr.  Keener  was  born  in  Augusta,  Georgia,  March  10,  1856, 
graduated  in  1874  at  Emory  College,  Oxford,  Georgia,  studied  at 
the  Harvard  Law  School  1875-78,  and  later  practised  law  in 
New  York. 

Of  this  appointment,  President  Eliot  said  in  his  Annual  Report 
for  1882-1883: 

From  the  first,  however,  he  preferred  the  life  of  a  student  and 
teacher,  had  embraced  all  opportunities  to  teach  law,  and  had 
given  decided  promise  of  success  as  a  teacher.  The  appointment 
was  of  a  kind  less  common  in  the  law  schools  of  the  United 
States  than  in  those  of  Europe ;  but  its  results  have  already 
proved  satisfactory. 

The  chief  event  of  the  academic  year  1883-84  was  that 
recorded  in  the  following  vote  of  the  Corporation,  October  31, 
1883: 

Voted  to  make  the  following  entry  upon  the  records  of  this 
meeting: 

Whereas  at  the  beginning  of  the  current  academic  year  the 
Harvard  Law  School  moved  from  Dane  Hall  to  Austin  Hall 
which  has  been  built  for  the  use  of  the  Law  School  through  the 
munificence  of  Edward  Austin,  Esq.,  upon  a  valuable  site 
assigned  therefore,  by  the  Corporation,  the  interest  of  the  Law 
School  in  Dane  Hall  has  ceased,  and  the  building  has  been  assign- 
ed by  the  Corporation  to  other  uses. 

This  removal  of  the  Law  School  in  October,  1883,  from  Dane 
Hall — its  home  for  fifty  years — marked  the  successful  culmina- 
tion of  another  of  Dean  Langdell's  designs — the  provision  of  a 
building  appropriate  to  the  increasing  prosperity  of  the  School. 

As  early  as  1876-77,  President  Eliot  in  his  Annual  Report 
had  pointed  out  that  the  Law  School  was  the  least  endowed 
department  of  the  University,  and  that  it  was  in  sore  need  of  a 
new  building. 

In  his  Report  of  December,  1879,  Dean  Langdell  had  described 
at  length  the  inadequacy  and  discomforts  of  old  Dane  Hall. 

Little  has  been  said  heretofore,  in  the  annual  reports  upon  the 
Law  School;  of  the  need  of  a  new  building.  It  is  not,  however, 
because  the  inadequacy  and  unfitness  of  Dane  Hall  for  the  pur- 


LANGDELL  PERIOD.  433 

poses  of  the  School  have  not  been  long  severely  felt  that  silence 
has  been  kept  upon  the  subject,  but  rather  because  it  seemed 
undesirable  to  excite  discontent  with  what  we  have,  so  long  as 
there  was  no  immediate  prospect  of  our  being  able  to  get  anything 
better.  It  is  unnecessary  to  speak  of  the  architectural  shortcom- 
ings of  Dane  Hall,  for  they  are  so  great  and  so  notorious  as  to 
be  a  discredit  to  the  entire  University.  Regarding  it,  however, 
from  a  purely  practical  point  of  view,  it  has  never  been  a  good 
building.  First,  its  means  of  ventilation  are  wholly  insufficient 
for  such  numbers  as  have  frequented  it  for  several  years  past. 
This  evil  of  insufficient  ventilation  has  been  much  aggravated  in 
the  lecture  room  by  the  great  increase  in  the  number  of  lectures. 
For  many  years  after  Dane  Hall  was  built  there  were  never 
more  than  two  lectures  in  a  day ;  and  hence  it  was  not  necessary 
— though  it  was  the  practice — to  occupy  the  lecture-room  two 
hours  in  succession.  Now,  however,  there  are  almost  six  lectures 
a  day  upon  an  average;  and  hence  it  is  necessary,  during  four 
days  of  each  week,  to  occupy  the  lecture-room  four  hours  in 
succession  each  day;  namely,  from  9  A.  M.  to  I  P.  M.  .  .  . 
Secondly,  the  library  and  lecture-room  are  each  lighted  from  four 
different  directions ;  and  it  would  be  probably  safe  to  say  that  a 
year  has  never  passed  in  which  the  cross-lights  of  these  two 
rooms  have  not  ruined,  or  seriously  injured,  the  eyes  of  one  or 
more  persons.  Thirdly,  by  reason  of  its  being  so  low  studded 
and  so  near  the  roof,  the  lecture-room  is  a  very  uncomfortable 
place  in  warm  weather.  Fourthly,  when  Dane  Hall  was  erected 
its  location  was  as  good  as  could  be  desired ;  but  since  it  was 
moved  sixty  feet  to  make  room  for  Matthews  Hall,  what  with  the 
paving  of  Harvard  Square  and  the  great  increase  of  traffic,  its 
location  has  become  one  of  the  worst  that  could  be  found  in  Cam- 
bridge. The  noise,  for  example,  is  so  great  that  it  is  impossible 
to  make  one's  self  heard  in  the  lecture-room  with  the  windows 
open ;  and  yet  the  atmosphere  of  the  room  frequently  becomes 
suffocating  with  the  windows  closed.  .  .  .  The  books  suffer 
greatly  from  the  dust,  while  during  the  cold  weather  they  suffer 
greatly  from  the  heat.  .  .  .  Again,  the  danger  to  the  books 
from  fire  is  so  great  as  to  be  a  cause  of  constant  anxiety.  If  the 
library  should  be  destroyed,  it  is  probably  safe  to  say  that  one 
hundred  thousand  dollars  would  not  replace  it ;  and  its  value  is 
increasing  rapidly.  .  .  .  Already  the  Librarian  has  been 
compelled  to  remove  large  quantities  of  books  from  the  Library 
into  private  rooms.  .  .  .  Formerly,  each  Professor  occupied 
a  private  room,  and  it  was  not  the  practice  of  the  Professors  to 
do  any  work  in  the  Library.  In  this  respect,  however,  there  has 
been  a  total  change.  The  five  Instructors  have  only  two  private 
rooms  at  their  disposal,  and  even  these  are  so  far  removed  from 
the  Library  that  they  are  unavailable  for  ordinary  working  pur- 
poses. All  the  work,  therefore,  done  by  the  Instructors  in  Dane 
Hall  is  now  done  in  the  Library;  and  yet  they  have  no  suitable 

28 


434  HARVARD  LAW  SCHOOL. 

accommodation  whatever.  Behind  the  railing  there  is  space  for 
only  one  person  to  work  comfortably,  and  that  space  is  properly 
occupied  by  the  Librarian's  desk.  Two  Professors  can  find  places 
to  sit,  such  as  they  are,  but  when  more  than  two  are  present  at 
the  same  time,  some  of  them  must  content  themselves  with  stand- 
ing room;  and  whether  sitting  or  standing  they  are  a  constant 
inconvenience  to  the  Librarian  and  his  assistants. 

The  American  Law  Reznew  said  in  January,  1880  (Vol.  XIII)  : 

Graduates  who  cannot  forget  the  blasts  ab  imo  and  the 
draughts  usque  ad  coelum  which  duly  swept  through  the  fee  of 
Dane  Hall  wish  success  to  the  friends  of  the  School,  who  ask 
that  suitable  quarters  for  books  and  men  be  furnished  in  the  new 
Hastings  Hall.  Nowhere  is  work  done  which  is  sounder  or  of 
more  value  to  the  country ;  and  the  safety  of  the  Library,  as  well 
as  the  health  of  the  Professors  and  students,  requires  that  better 
quarters  be  built  or  the  present  hall  be  improved  as  soon  as 
possible. 

The  Report  of  the  Visiting  Committee  to  the  Overseers  for 
1879-80  stated  that  the  School  was  suffering  from  want  of  income 
and  from  the  inadequate  accommodation  afforded  by  Dane  Hall. 

President  Eliot,  in  his  Annual  Report  for  1879-80,  after 
recounting  the  great  progress  in  the  School  in  the  past  ten  years, 
and  calling  attention  to  its  lack  of  endowment  ( i )  and  to  the  fact 


(i)  In  1871-72,  President  Eliot  had  said:  "The  Law  School  is  very 
inadequately  endowed,  and  is  therefore  somewhat  dependent  for  the  main- 
tenance of  its  organization  upon  the  number  of  students.  It  is  this  deplor- 
able dependence  which  debases  so  many  of  the  professional  schools  of  this 
country.  With  its  present  organization,  the  Law  School  costs  from  $25,000 
to  $27,000  a  year,  while  it  has  an  income  from  permanent  funds  to  the 
amount  of  only  $11,000  a  year,  of  which  sum  more  than  $8,000  is  derived 
from  the  Bussey  Trust. 

To  fill  out  its  curriculum  the  School  greatly  needs  a  fourth  Professorship 
to  be  devoted  to  Roman  Law,  Jurisprudence,  and  the  History  of  Law ;  but 
this  chair  must  be  amply  endowed,  for  the  number  of  students  in  this 
country  who  know  enough  to  desire  thorough  instruction  in  these  subjects 
is  small,  and  is  likely  to  continue  so  for  many  years  to  come." 

In  1872-73  he  again  said:  "It  is  much  to  be  regretted  that  the  Law 
School  is  so  inadequately  endowed,  for  some  steps  with  regard  to  legal 
education  still  remain  to  be  taken  which  demand  a  greater  independence 
of  receipts  from  student's  fees  than  the  School  can  now  claim.  The  Dane 
Professorship  has  a  fund  of  only  $15,000,  while  the  present  salary  of  the 
Professor  is  $4,000.  The  Royall  Professorship  is  still  worse  off,  having 
a  fund  of  only  $7,943.63.  Moreover,  it  is  very  desirable  that  the  salaries 
of  the  Professors  in  the  Law  School  should  be  raised,  even  if  it  be  not 
possible  to  raise  the  salary  attached  to  a  full  Professorship  in  the  other 
departments  of  the  University.  Successful  lawyers  earn  much  more  than 
$4,000  a  year  in  these  times,  even  before  they  reach  the  prime  of  life." 

In  1876-77,  he  said:     "If  the  Law  School  continues  to  increase  in  num- 


LANGDELL  PERIOD.  435 

that  whatever  prosperity  it  had  came  from  the  increase  of  tuition 
fees  from  $11.525.70,  in  1869-70,  to  $23,701.24,  in  1879-80,  con- 
tinued : 

This  department  of  the  University  has  certainly  helped  itself; 
it  now  deserves  to  be  helped.  Its  building  is  inadequate  in  every 
respect.  There  is  but  one  lecture  room,  so  that  two  classes  have 
been  this  year  obliged,  at  great  inconvenience,  to  resort  to  lecture 
rooms  which  chanced  to  be  temporarily  vacant  in  University 
Hall ;  the  very  valuable  Library  is  exposed  to  destruction  by  fire ; 
the  situation  of  the  building  is  such  that  the  lecturers  are  much 
disturbed  by  the  noise  from  the  streets ;  and  neither  Professors  or 
students  can  be  properly  accommodated  in  the  Library.  A  new 
building  upon  a  new  site  is  urgently  needed. 

Within  a  few  weeks  after  the  publication  of  the  above  Report, 
President  Eliot  received  from  a  gentleman  whose  name  was  not 
at  first  revealed,  the  magnificent  offer  to  donate  $100,000  to 
supply  the  need  of  a  new  building  for  the  Law  School. 

The  Corporation,  February  28,  1881,  appointed  Eliot  and 
John  Ouincy  Adams  as  a  Building  Committee,  with  authority  to 
invite  H.  H.  Richardson  to  be  the  architect,  and,  on  March  30, 
designated  Eliot  and  Treasurer  Hooper  to  select  a  site — the  loca- 
tion finally  chosen  being  on  Holmes  Place,  "very  satisfactory  as 
regards  aspect  and  security  against  dirt,  noise  and  fire.'X1) 
Plans  for  the  new  building  were  studied  with  great  care ;  and,  the 
estimate  of  cost  being  found  larger  than  the  original  gift,  the 
offer  was  increased  to  $135,000 ;(2)  and  work  was  begun  in  the 

bers  at  the  rate  of  the  last  eight  years,  and  there  are  no  signs  of  any  arrest 
of  progress,  the  building  which  it  occupies  will  soon  become  too  small  for 
it.  The  Library-room  is  already  uncomfortably  small  for  the  number  of 
readers  who  resort  to  it,  and  the  lecture-room  is  also  insufficient.  Some 
of  the  smaller  rooms  in  the  building  can  doubtless  be  used  more  advantage- 
ously than  at  present ;  but  should  the  number  of  students  rise  much  above 
two  hundred,  Dane  Hall  will  be  entirely  inadequate  for  their  proper  accom- 
modation. Moreover  the  very  valuable  Library  of  the  School  ought  to  be 
secured  in  a  fire-proof  building." 

(1)  See   Annual   Report  of  the    President   for    1880-81.     Purchase   of 
33,380  feet  of  land,  known  as  the  Royal  Morse  Estate,  was  made  which, 
together  with  other  land  owned  by  the  Corporation,  afforded   sufficient 
space. 

See  Vote  of  the  Corporation,  April  n,  1881 :  "Voted  to  assign  for  the 
site  of  the  new  building  for  the  Law  School  the  land  on  Holmes  Place  now 
used  for  a  stable  together  with  that  just  purchased  from  the  representatives 
of  Royal  Morse." 

See  also  Treasurer's  Report  Aug.  31,  1881. 

(2)  On  April  24,   1882,  the  Corporation  passed  the  following  votes : 
"The   treasurer   submitted  to  the   Board  an   offer   from   Edward   Austin, 
Esq.,  to  give  to  the  College  on  or  about  the  first  day  of  July  next  the  sum 


436  HARVARD  LAW  SCHOOL. 

spring  of  1882.  At  the  same  time,  public  announcement  was 
made  that  the  generous  benefactor  was  Edward  Austin  of 
Boston. 

Mr.  Austin  was  born  at  Portsmouth,  New  Hampshire,  January 
17,  1802  or  1803,  the  exact  date  being  uncertain.  His  family 
soon  removed  to  Boston.  At  the  age  of  sixteen,  while  a  boy 
in  the  office  of  a  shipping  firm,  he  attracted  the  notice  of 
one  of  the  leading  ship  merchants  of  the  day,  who  offered  him 
the  position  of  supercargo.  After  several  voyages,  during  which 
he  showed  most  eminent  business  ability,  he  went  into  partner- 
ship with  his  brother  Samuel,  in  the  shipping  business.  For 
several  years,  he  lived  in  Calcutta.  On  his  return  to  this  country, 
he  was  made  the  agent  of  William  Appleton  and  others  to  pur- 
chase cotton  in  the  South  for  their  mills.  He  was  also  agent  of 
Baring  Bros. ;  and  so  successful  were  his  speculations  in  cotton 
for  those  great  bankers  that  they  offered  him  a  partnership,  a 
position  which  he  declined,  and  which  was  subsequently  accepted 
by  Russell  Sturgis  (Harv.  1823).  After  some  years,  his  ship- 


of  $135,000  for  the  erection  of  a  new  building  for  the  Law  School,  in  con- 
sideration of  certain  agreements  to  be  entered  into  by  the  Corporation  in 
relation  to  such  building — which  agreements  are  stated  in  the  letter  of  the 
Treasurer  to  Mr.  Austin,  dated  April  22nd,  and  his  reply  thereto,  dated 
April  24th,  1882,  whereupon  it  was 

Voted  that  the  President  and  Fellows  gratefully  accept  the  generous 
offer  of  Edward  Austin,  Esq.,  and  agree  to  carry  out  the  wishes  expressed 
by  him  substantially  as  follows: 

ist,  that  the  Corporation  will,  as  soon  as  possible  before  said  first  day 
of  July,  contract  at  its  own  risk  with  Messrs.  Norcross  Brothers  for  the 
entire  construction  of  a  building  for  the  Law  School  in  accordance  with 
the  plans  of  Mr.  H.  H.  Richardson  which  were  submitted  to  be  approved 
by  Mr.  Austin  on  April  22nd  instant,  no  modification  of  the  outside  of  the 
building  is  shown  upon  the  plan  to  be  made  without  Mr.  Austin's  consent 
except  the  substitution  of  a  slated  roof  for  the  tiles  and  terra  cotta. 

2nd,  that  the  changes  of  plan  to  be  made  for  the  inside  of  the  building 
to  reduce  its  cost  shall  not  extend  to  any  alteration  of  the  entr}'  ways,  so  as 
to  remove  the  polished  granite  columns  or  faced  brick  arches,  nor  to  any 
alterations  of  the  design  for  the  large  reading  room,  beyond  the  substitu- 
tion of  plaster  for  the  sheathing  between  the  roof  beams,  nor  shall  any 
change  be  made  which  would  injure  the  building  for  the  present  uses  of  a 
Law  School  or  prevent  its  ready  adaptation  to  the  needs  of  a  growing 
School  for  many  years  to  come. 

3rd,  that  no  building  shall  be  hereafter  erected  by  the  College  within  60 
feet  of  any  part  of  the  Law  School  building ;  that  being  the  distance 
between  the  front  wall  of  the  building  and  the  line  of  the  roadway  on 
Holmes  Place. 

Voted  that  in  remembrance  of  the  munificent  gift  of  Mr.  Edward  Austin 
and  of  his  expressed  wish  that  the  building  shall  stsnd  as  a  memorial  of  his 
deceased  brother  Samuel  Austin,  the  name  of  Austin  Hall  shall  be  given 
to  the  new  building  for  the  Law  School." 

On  September  26,  1882,  at  Mr.  Austin's  request,  it  voted  :"that  the 
President  and  Fellows  will  keep  Austin  Hall  permanently  in  good  repair 
and  perfectly  insured  against  fire." 


LANGDELL  PERIOD.  437 

ping  business  died  out;  and,  abandoning  bis  cotton  agencies,  he 
became  actively  interested  as  director  in  Massachusetts  railroads 
and  also  in  the  Massachusetts  Hospital  Life  Insurance  Co. 
Gradually,  however,  he  withdrew  to  the  life  of  a  recluse  in  his 
library  at  No.  45  Beacon  Street,  seldom  going  out  except  for  a 
rare  visit  to  State  Street  or  a  short  daily  walk  round  "His  Park" 
as  he  called  the  Common.  He  died  November  16,  1898. (i) 

In  the  latter  part  of  September,  1883,  the  new  building  was  so 
far  enough  advanced  that  the  Library  could  be  moved  thither ;  and 
lectures  began  there  on  October  i,  1883. 

"It  would  be  hard  to  exaggerate  the  advantages  which  the 
School  derives  from  the  possession  of  this  admirable  building," 
said  President  Eliot  in  the  Report  for  1883-84.  "The  reading- 
room,  which  is  the  chief  resort  of  the  students,  is  a  noble  room, 
light,  airy,  and  handsomely  furnished ;  the  book- room  is  fire-proof, 
well-lighted,  and  capacious  enough  to  hold  the  present  Library  and 
the  probable  accessions  of  fifty  years;  the  lecture  rooms  are  well 
ventilated ;  the  rooms  for  the  Dean  and  Librarian  are  ample ;  and 
the  locker-rooms  and  other  provisions  for  the  convenience  and 
comfort  of  the  students  are  sufficient  for  present  needs  and  cap- 
able of  extension.  Internally  and  externally  Austin  Hall  is  very 
substantially  constructed;  and  it  is  by  far  the  most  ornate  build- 
ing which  the  University  possesses.  The  architect  was  Mr.  H. 
H.  Richardson,  to  whom  the  University  owes  the  design  of  an- 
other much  admired  building,  Sever  Hall ;  and  the  committee  of 
the  Corporation  in  charge  of  the  undertaking  was  the  Treasurer, 
Mr.  Hooper,  to  whose  good  judgment  and  care  in  supervising  the 
work  the  School  is  much  indebted." 

The  year  1883-84  marked  the  turning  point  in  the  School's 
financial  condition;  and  from  that  year,  its  career  became  one  of 
increasing  prosperity.  (2)  The  number  of  students  was  150,  a 
gain  of  12,  over  the  preceding  year. 

(1)  See  sketch  by  W.  W.  Vaughan  in  Harvard  Graduate  Magazine, 
Vol.  VII   (1899). 

(2)  President   Eliot    stated   in    his   Annual    Report :    "In   imposing   an 
admission  examination  in  1877  and  simultaneously  raising  the  full  term  of 
residence  to  three  years,  the  Faculty  ran  no  small  pecuniary  risk,  and  the 
friends  of  the  School  have  scanned  with  some  anxiety  the  statistics  which 
annually  exhibit  in  the  Dean's  report  the  effects  of  these  very  restrictive 
measures.    Within  the  same  period  discussions  have  taken  place  as  to  the 
entire  wisdom  of  the  selection  of  subjects  and  methods  of  instruction  at 
the  School,  and  as  to  the  nature  of  the  best  possible  appointment  to  pro- 
fessorial chairs.  Such  debates,  however  well-conducted  and  fruitful,  do  not 
for  the  time  being  encourage  the  resort  of  students  to  the  School  under 


438  HARVARD  LAW  SCHOOL. 

No  new  Professors  or  Instructors  were  appointed  this  year  ;  but 
Professor  Thayer,  who  had  returned  from  Europe,  resigned  the 
Royall  Professorship,  October  8,  1883,  to  take  the  chair  of  the 
New  Professorship,  and  Professor  Gray,  on  November  12,  1883, 
resigned  as  Story  Professor,  and  was  appointed  to  the  Royall 
Professorship.  Changes  in  the  courses  were  few ;  Professor 
Keener  took  Langdell's  old  course  in  First  Year  Contracts,  and 
Ames'  course  on  Second  Year  Bills  and  Notes;  Ames  resumed 
First  Year  Torts. 

In  1884-85,  the  number  of  students  connected  with  the  School 
again  showed  a  slight  increase  to  156;  and  instead  of  a  deficit  of 
$412.86  and  $1,674.46  as  in  the  preceding  years,  a  surplus  was 
shown  $3,176.24.  This  was  especially  gratifying,  as  the  expenses 
of  the  School  in  Austin  Hall  were  $1,500  a  year  larger  than 
those  of  Dane  Hall. 

During  the  spring  of  1886,  petitions  were  sent  to  the  Corpora- 
tion by  large  numbers  of  the  Law  Students  asking  that  short 
courses  might  be  given  in  subjects  not  then  touched  on  in  the 
School,  Admirality,  Bailments,  Banking,  Conveyancing,  Insurance, 
Jurisprudence,  Medical  Jurisprudence,  Patents,  Railroad  Law 
and  Mining  Law;  also  for  a  course  on  Massachusetts  Practice. 
The  Corporation  referred  these  petitions  to  the  Law  Faculty,  and 
suggesting  the  establishment  of  the  last  course  asked  for.  The 
Faculty,  after  considering  the  matter  at  length,  took  action,  April 
5,  1886,  which  was  approved  by  the  Corporation  in  the  following 
vote: 

The  following  answers  were  received  from  the  Faculty  of  Law 


discussion,  particularly  in  a  country  which  is  over-supplied  with  schools  of 
law.  It  is  therefore  with  especial  satisfaction  that  the  Faculty  have  seen 
the  decline  in  the  number  of  students  since  1877-78  reach  its  limit  in  five 
years.  The  effect  of  the  admission  examination  has  been  to  increase  the 
proportion  of  college  graduates  in  the  whole  number  of  students,  and  to 
improve  the  quality  of  the  School  at  the  expense  of  its  numbers." 

And  Langdell  stated  in  his  Annual  Report :  "The  great  obstacle  in  the 
way  of  the  success  of  the  three  years'  course  has  been  and  is,  not  the  dif- 
ficulty of  inducing  students  to  enter  the  School,  but  the  difficulty  of  induc- 
ing them  to  remain  for  three  years.  During  the  seven  years  extending 
from  1870  to  1876,  both  inclusive,  the  average  length  of  attendance  of  all 
students  entering  the  School  was  a  trifle  over  a  year  and  a  third  (1.35 
years).  During  the  seven  years  extending  from  1877  to  1883,  both  inclu- 
sive (being  the  period  during  which  the  three  years'  course  has  been  in 
operation),  the  average  length  of  attendance  has  been  a  trifle  over  a  year 
and  a  half  (1.52  years).  ...  It  must  be  confessed,  therefore,  that  the 
three  years'  course  has  not  yet  produced  very  much  fruit  so  far  as  regards 
the  School  as  a  whole." 


LANGDELL  PERIOD.  439 

School  in  relation  to  the  petitions  recently  referred  to  them  by  the 
Board. 

"Voted  that  it  be  recommended  to  the  Corporation  that  the  use 
of  a  room  in  Austin  Hall  be  granted  to  students  who  desire  a 
course  in  Massachusetts  practice,  provided  the  instructor  to  be 
employed  by  them  shall  be  selected  from  those  who  have  received 
the  degree  of  LL.  B.  cum  laude  at  the  School. 

Voted  that  the  Faculty  advise  as  to  the  general  policy  of  the 
School  that  the  efforts  of  the  Governing  Boards  be  directed  to  the 
increase  of  the  staff  of  permanent  teachers.  As  to  immediate  pro- 
vision of  additional  teaching,  that  they  have  already  added  new 
courses  of  instruction  for  the  ensuing  year  to  the  full  extent  of 
the  present  resources  of  the  School,  and  that  these  new  courses 
will  deal  with  some  of  the  subjects  mentioned  in  the  petition 
referred  to  them." 

And  it  was  therefore  Voted  that  the  answers  of  the  Faculty  are 
satisfactory  to  the  President  and  Fellows  and  that  the  President 
be  requested  to  ask  the  Dean  of  the  Law  School  to  communicate 
the  substance  of  the  answers  to  the  students  from  whom  the 
petitions  were  received. 

In  1885-86,  the  number  of  students  was  158,  about  the  same  as 
in  the  preceding  year. 

The  year  1886-87  was  one  °f  a  sudden  increase  of  prosperity 
the  number  of  students  jumping  from  158  to  188. 

In  the  fall  of  1886  occurred  an  event  which  has  since  proved  of 
tremendous  influence  on  the  success  of  the  School — the  formation 
of  the  Harvard  Law  School  Association.  Its  first  meeting  was 
held  on  September  23,  1886,  and  was  adjourned  to  meet  at  Austin 
Hall  on  Friday,  November  5,  1886 — the  first  of  the  series  of  days 
devoted  to  the  Commemoration  of  the  25Oth  Anniversary  of  the 
Founding  of  Harvard  College.  At  this  meeting  officers  were 
chosen ;  an  address  was  given  by  the  new  President  of  the 
Association,  Hon.  James  C.  Carter,  of  New  York,  and  an  ora- 
tion by  Judge  Oliver  Wendell  Holmes,  Jr.,  in  Sanders  Theatre. 
Afterwards,  a  dinner  took  place  in  the  Hemenway  Gymnasium,  at 
which  about  four  hundred  were  present.  President  Carter  pre- 
sided, and  upon  his  right  sat  Judge  Holmes,  Professor  Langdell, 
Gen.  Alexander  R.  Lawton  of  Georgia,  Hon.  George  O.  Shattuck, 
Professor  Thayer,  Hon.  E.  Rockwood  Hoar,  Judge  Thomas  M. 
Cooley  of  Michigan,  and  Professor  Ames.  On  his  left  were 
President  Eliot,  Hon.  Samuel  E.  Sewall,  Hon.  Robert  M.  Morse, 
Jr.,  Judge  Nathaniel  Holmes,  Hon.  Dorman  B.  Eaton,  Hon.  Dar- 
win E.  Ware,  Professor  Gray,  Professor  Keener,  and  Dr.  Man- 


440  HARVARD  LAW  SCHOOL. 

dell  Creighton  of  Emanuel  College,  Cambridge,  England. 
Speeches  were  made  by  Carter,  Langdell,  Sewall  (who  entered 
the  School  in  its  very  first  year,  1817,  and  left  in  1819),  Eliot, 
Lawton,  Shattuck,  Frank  W.  Hackett,  Gray  and  Hoar  (who 
stated  that  he  had  known  personally  every  instructor  in  law  since 
the  very  beginning  of  the  School). 

It  is  not  surprising  that  so  brilliant  an  occasion  should  have  been 
the  starting  point  of  a  new  career  of  prosperity  for  the  School.  ( i) 
Another  potent  factor  in  increasing  the  prosperity  of  the 
School  arose  in  this  academic  year,  in  the  founding  of  the 
Harvard  Law  Review,  the  first  legal  journal  issued  in  a  Law 
School.  The  first  number  appeared  April  15,  1887.  The  Board 
of  Editors  were :  John  Jay  McKelvey,  Editor  in  Chief ;  Joseph 
H.  Beale,  Jr.,  Bertram  Ellis,  Treasurer;  William  A.  Hayes,  Jr., 
Julian  W.  Mack,  John  Wells  Morse,  John  H.  Wigmore,  Alex- 
ander Winkler,  Bancroft  G.  Davis,  Marland  C.  Hobbs,  Blewett  H. 
Lee,  Henry  M.  Williams,  John  M.  Merriam,  George  R.  Nutter, 
Paul  C.  Ransom. 


(i)  Of  this,  Dean  Langdell  said  in  his  Annual  Report  (dated  Dec.  6, 
1886)  :  "It  is  not  clear  that  it  is  due  to  any  immediate  cause ;  it  is  not 
clear  that  the  crop  of  the  present  year  is  not  the  fruit  of  cultivation 
bestowed  during  several  preceding  years.  While,  however,  it  cannot  be 
proved  to  be  the  effect  of  any  immediate  cause  or  causes,  that  is  not  because 
events  have  not  recently  happened  of  sufficient  importance  to  produce  such 
an  effect;  for  there  have  been  two  such  events  at  least.  First,  during 
the  latter  part  of  1885-86,  the  Faculty  co-operating  with  the  Corporation 
voted  to  increase  the  amount  of  instruction  in  the  second  and  third  years 
from  23  hours  per  week  to  27  hours  per  week;  and  also  to  make  all  the 
courses  in  the  second  and  third  years  elective.  (See  vote  of  March  9, 
1886).  These  changes  went  into  operation  at  the  beginning  of  the  current 
year ;  and  they  were  expected  to  make  the  second  and  third  years  more 
attractive,  partly  by  convincing  the  most  skeptical  that  the  School  furnishes 
as  much  work  as  any  man  can  do  and  do  properly  in  three  years,  and 
partly  by  enabling  every  one  to  obtain  all  the  honors  of  the  School  without 
the  necessity  of  taking  any  course  that  may  be  distasteful  to  him  or  that 
he  may  think  unprofitable.  Whether  these  changes  have  had  the  effect  of 
inducing  students  to  remain  in  the  School  who  would  otherwise  have  left, 
I  do  not  know.  .  .  . 

Secondly,  since  the  close  of  the  year  1885-86  an  association  has  been 
formed  of  alumni  and  former  students  of  the  School,  called  the  Harvard 
Law  School  Association.  The  success  which  has  thus  far  attended  this 
enterprise,  whether  tested  by  the  alacrity  with  which  solicitations  to  join 
the  association  were  responded  to,  or  by  the  manner  in  which  the  newly- 
formed  association  celebrated  the  25oth  anniversary  of  the  foundation  of 
the  College,  has  been  a  surprise  to  every  one.  That  the  association  has 
already  rendered  a  very  valuable  service  to  the  School  there  can  be  no 
doubt ;  and  if  its  influence  has  not  already  been  felt  in  increasing  the 
number  of  students  in  the  School,  it  is  doubtless  because  sufficient  time 
has  not  yet  elapsed  to  enable  it  to  make  itself  felt  in  that  way.  The 
gentlemen  who  conceived  and  started  this  enterprise,  and  who  have  spared 
neither  time  nor  labor  in  carrying  it  out,  are  entitled  to  the  lasting  grati- 
tude of  every  one  who  has  the  welfare  of  the  School  at  heart." 


^yBJWtii^  ."Miti^  ;.v  Jimm^^SOi^^iHIl^  Tatjtf* 

"'r  •-  -  -  ~/^~~"   '~f  '  ^  "-*/•'  -"~'^~  -^P^  i!t  /-"^ """^TT  vT4"  '~~~~f-    ~,~~~*-\  r^^*aK'T-T\^-;^-^"  'Vf  ,-^" — -KJ^  ,>^ ,  "*.  *(^- — v- '  r"T~  '  -/^^T  ^T-  "r^r"~ "~ 
TOnttTy^v    jl?lim?^^:  "^ :  '.imnffiiin- ... J'^kT.^lll^v  iVtirfe'infeC^iiii^  ^JiS^^^^-SL'S.  !V^ 


LAXGDELL  PERIOD.  441 

In  an  editorial  note,  the  purposes  were  stated  as  follows : 

Our  subject,  primarily,  is  to  set  forth  the  work  done  in  the 
School  with  which  we  are  connected,  to  furnish  news  of  interest 
to  those  who  have  studied  law  in  Cambridge,  and  to  give  if  pos- 
sible, to  all  who  are  interested  in  the  subject  of  legal  educa- 
tion, some  idea  of  what  is  done  under  the  Harvard  system  of 
instruction.  Yet  we  are  not  without  hopes  that  the  Reviczv  may 
be  serviceable  to  the  profession  at  large.(i) 

Another  event  of  importance  was  the  award  by  the  Academic 
Council,  for  the  first  time,  of  a  fellowship  to  a  Law  School  stud- 
ent,— the  fortunate  and  able  recipient  being  Julian  W.  Mack  of 
the  graduating  class,  who  was  appointed  to  a  Fellowship  to  study 
Civil  Law,  in  Europe. 

On  February  18,  1887,  the  old  system  of  mock  jury  trials,  in 
vogue  in  Judge  Story's  time,  was  revived;  and  a  trial  was  held 
of  Eugene  Aram  for  the  murder  of  Daniel  Clark  before  Beale  and 
Wigmore,  J.  J.  A.  Winkler  appeared  for  the  prosecution;  for 
the  defendant,  Eugene  Aram  (J.  W.  Mack),  appeared  pro  se. 
The  Clerk  of  Courts  was  J.  J.  McKelvey  and  the  jury  was  com- 
prised of  undergraduates.  The  Harvard  Laiv  Review  described 
it  as : 

A  new  departure  in  the  line  of  student  law  trials  which  owing 
to  the  fact  that  it  bids  fair  to  become  a  permanent  feature  of 
student  work  is  worthy  of  some  comment.  The  plan  embodied 
the  conduct  of  a  complete  jury  trial  from  the  formal  opening  of 
the  court  to  the  rendering  of  the  verdict,  and  in  spite  of  many 
obstacles  has  been  carried  out  with  remarkable  success.  As  yet 
no  way  has  been  found  in  which  to  make  the  cross-examination  a 
complete  success. 

The  last  preceding  trial  of  the  kind  of  which  record  exists  was 
on  May  23,  1871 — an  action  of  contract — Godfrey  Morse  vs. 
Edward  O.  Wallcut — tried  before  Professor  Nathaniel  Holmes 
as  Judge,  Austen  G.  Fox  being  Clerk  of  Court  and  Archibald  M. 
Howe,  Sheriff.  James  Barr  Ames  and  Henry  \V.  Putman  were 
the  counsel  for  the  plaintiff;  and  G.  H.  Ball  and  H.  A.  Harman 
for  the  defendant.  The  jury  was  composed  of  undergraduates.  (2) 

(1)  The  "Shingle"'  given   to  Editors   appearing  on  the  opposite   page 
was  drawn  by  Odin  B.  Roberts  (L.  S.  1888-91). 

(2)  As    illustration    of   the    shortness    and    incompleteness    of    student 
memory,  a  trial  occurring  in  1894  was  described  in  the  Harvard  Graduates 
Magazine  for  March,  1894,  as  the  first  mock  trial  for  40  years.     The  case 
was  the  famous  Rowland  will  case — Julian  Codman  v.  B.  L.  Hand, — and 
was  tried  before  Professor  Jeremiah  Smith  as  Judge. 


442  HARVARD  LAW  SCHOOL. 

The  School  received  this  year  one  highly  valued  gift  of  $1,000 
for  increasing  instruction  in  Constitutional  Law  during  the  year 
1888-89,  presented  by  the  newly  formed  Harvard  Law  School 
Association. 

In  June,  1888,  there  was  published  the  first  really  complete 
Catalogue  of  the  School  ever  issued.  It  was  the  result  of  the 
most  careful,  discriminating,  and  laborious  pains  taken  by  the 
Librarian,  John  H.  Arnold.  Hitherto  a  triennial  Catalogue  had 
been  issued  from  1830  to  1851  inclusive.  After  1851,  only  one 
Catalogue  had  appeared,  (in  1858),  until  the  summer  of  1886, 
when  for  the  use  of  the  coming  25oth  Anniversary  of  the  College 
the  Catalogue  of  1858  was  brought  down  to  date,  and  Mr. 
Arnold  then  began  the  huge  work  of  ascertaining  the  existing 
addresses,  if  alive,  and  the  time  and  place  of  death,  if  dead,  of 
every  man  who  had  been  in  the  School.  ( i ) 

A  vote  of  the  Law  Faculty  this  year,  making  all  courses  of  the 
second  and  third  year  elective,  caused  a  decided  change  in  the 
appearance  of  the  Tabular  View  of  courses (2).  Several  new  half 
courses  were  given :  on  Carriers,  by  Professor  Thayer ;  on  Juris- 
diction and  Practice  of  the  United  States  Courts,  by  Professor 
Gray ;  on  Torts  and  on  Legal  History,  by  Professor  Ames ;  Joseph 
B.  Warner,  (L.  S.,  1871-74,  appointed  a  Lecturer  Feb.  18,  1886), 
gave  Third  Year  Constitutional  Law,  assisting  Professor  Thayer. 
A  course  of  lectures  on  International  Law  was  also  delivered  by 
Henry  Warren  Torrey,  McLean  Professor  of  Ancient  and  Mod- 

The  attorneys  for  the  plaintiff  were  T.  N.  Perkins  and  R.  S.  Barlow ; 
for  the  defendant,  F.  R.  Bangs  and  A.  N.  Hand.  Witnesses  were  A.  D. 
Hill  and  C.  L.  Barlow;  medical  expert,  G.  K.  Bell;  Sheriff,  D.  R.  Vail. 
The  jury  was  out  for  two  hours  and  found  for  the  plaintiff. 

(1)  Of  this  Catalogue,  Langdell   said  in  his  Annual  Report   1888-89: 
"Until  the  establishment  of  the  Law  School  Association  the  School  exhib- 
ited a  very  culpable  want  of  interest  in  its  alumni  and  former  members ; 
and  one  of  the  consequences  of  its  establishment  has  been  the  very  radical 
change  which  has  taken  place  in  the  School  in  the  particular  just  referred 
to.     In  truth,  it  is  only  within  the  last  three  years  that  the  School  has 
awakened  to  the  fact  that  its  old  students  are  its  natural  friends  and  sup- 
porters.    Moreover,  it  was  not  until  the  fact  was  made  clear  to  every  one 
by  the  publication  in  June,  1888,  of  the  Catalogue  of  the  Officers  and  Stu- 
dents of  the  School  from  1817  to  1887,  that  the  School  fully  realized  how 
distinguished   a   body   of  men   her   old   students   have   become,   and   how 
much   lustre  they   shed  upon   their  alma  mater.     Indeed,  that   Catalogue 
exhibited  a  roll  of  names  of  which  any  institution  might  well  be  proud. 
In  proportion  to  its  numbers,  and  the  period  of  time  which  it  covers,  it  is 
doubtful  if  any  institution  in  the  United  States  could  produce  its  equal." 

(2)  The  requirements  for  the  Honor  Degree  were  increased  by  vote  of 
the  Law  Faculty  of  June  7,  1886,  requiring  thereafter  a  mark  of  75  per  cent, 
to  be  obtained  in  the  entire  course,  instead  of  merely  in  the  studies  of  the 
second  and  third  years,  by  candidate  for  the  Honor  Degree. 


LANGDELL  PERIOD.  443 

ern  History,  Emeritus.  The  beginning  of  the  year  1887-88  showed 
that  the  great  increase  of  students  in  the  preceding  year  was  no 
sporadic  event,  but  only  the  forerunner  of  a  permanent  phase  in 
the  history  of  the  School ;  for  again  the  membership  rose  largely, 
from  188  to  225.  The  Story  Professorship,  which  had  been  vacant 
for  five  years,  was  filled  by  the  election  of  William  A.  Keener, 
May  14,  1888;  and  William  Schofield  (L.  S.,  1880-83,  appointed 
Instructor  April  25,  1887),  gave  a  course  in  Torts.  Beginning  with 
this  year,  Langdell  adopted  his  system  of  giving  his  third  year 
courses  in  alternation,  in  one  year  Equity  Jurisdiction  in  its  rela- 
tion to  Contract,  in  the  next  year,  in  its  relation  to  Torts ;  in  one 
year,  Personal  Suretyship,  in  the  next,  Real  Suretyship  or  Mort- 
gages. 

"The  Law  School  had,  in  1888-89,  a  third  year  of  decided  pros- 
perity. Its  general  condition  seems  healthy  and  stable ;  and  since 
its  income  has  for  several  years  exceeded  its  outlay,  the  time  is 
approaching  when  the  teaching  staff  can  be  again  enlarged,  and 
the  number  of  subjects  taught  in  the  School  has  increased."  So 
said  President  Eliot  in  his  Annual  Report.  The  number  of  stu- 
dents was  225,  the  same  as  in  the  preceding  year. 

Two  Lecturers  were  appointed  for  this  academic  year ;  Heman 
W.  Chaplin  (April  9,  1888)  on  Criminal  Law;  William  Scho- 
field (May  14,  1888)  on  Torts  and  Roman  Law. 

The  year  1889-90  marked  the  twentieth  year  of  Langdell's  con- 
nection with  the  School,  of  which  President  Eliot  spoke  in  his 
Annual  Report  for  1888-89  as  follows: 

It  has  been  a  period  full  of  fundamental  changes,  serious  risks, 
grave  criticisms,  and  severe  anxieties;  but  the  changes  have 
proved  wise,  the  risks  have  been  run  without  disaster,  the  criti- 
cisms have  been  met  or  outgrown,  and  the  anxieties  have  been 
forgotten  in  the  crowning  success  of  the  last  four  years.  Let  any 
who  wish  to  understand  the  Dean's  grounds  of  legitimate  satis- 
faction compare  the  School  of  1868-69  with  the  School  of  1888-89 
as  regards  its  regulations,  courses  of  instruction,  methods  of  teach- 
ing, requirements  for  admission  and  graduation,  building,  library, 
funds,  and  general  administration.  .  .  .  Within  the  period 
covered  by  the  Dean's  survey,  the  School  has  had  two  great 
benefactors,  the  giver  of  Austin  Hall,  and  the  founder  of  the 
New  Professorship.  It  has  also  received  from  a  considerable 
number  of  givers  a  book  fund  which  now  amounts  to  $42,021.25. 
These  benefactions,  however,  came  rather  late  in  the  trans- 
formation of  the  School,  and  were  rewards  and  encouragements. 


444  HARVARD  LAW  SCHOOL. 

rather  than  originating  impulses.  It  is  to  the  wisdom  and 
courage  of  the  Dean  and  Faculty,  and  to  the  prompt  demon- 
stration of  the  efficacy  of  the  School's  methods  which  its  young 
graduates  have  supplied,  that  the  School  owes  its  remarkable 
development.  .  .  . 

Heman  W.  Chaplin  and  William  Schofield  were  again  ap- 
pointed Instructors  for  this  year,  April  29,  1889.  In  the  spring 
of  1890,  several  changes  occurred.  Professor  Keener,  owing 
to  dissatisfaction  with  the  amount  of  his  salary,  resigned  March 
10,  1890,  to  accept  a  Professorship  in  the  Columbia  Law  School. 
Of  the  feelings  of  the  students  towards  this  event  the  Harvard 
Law  Revieiv  (Vol.  IV.),  said  in  April,  1890: 

The  students  who  attended  the  School  during  the  past  seven 
years  will  not  easily  forget  his  unvarying  kindness,  his  clear  and 
suggestive  method  of  teaching,  and  the  interest  and  enthusiasm 
for  his  subject  which  he  always  aroused  in  his  classes.  His  de- 
parture must  be  felt  with  regret  by  all  who  have  the  interest  of 
the  School  at  heart,  and  to  this  is  added  a  sense  of  personal  loss 
among  those  who  had  hoped  to  have  the  benefit  of  his  further 
instruction. 

As  the  resignation  was  not  to  take  effect  until  September,  the 
students  petitioned  the  Corporation,  expressing  their  regret,  and 
the  "hope  that  Professor  Keener  might  be  induced  to  continue  in 
the  service  of  the  University."  The  Corporation  voted,  however, 
March  10,  1890,  that  the  Treasurer  "be  requested  to  say  to  the 
petitioners  that  no  action  can  now  be  taken  upon  their  request  as 
the  Corporation  understands  that  Professor  Keener  has  already 
accepted  an  appointment  at  another  university." 

To  fill  the  vacancy  in  the  Story  Professorship,  the  Corporation 
appointed  March  31,  1890,  Ex- Judge  Jeremiah  Smith  of  Dover, 
New  Hampshire.  Of  this  appointment  the  Law  Review  said  (Vol. 
IV.),  that  it  "must  be  a  satisfaction  to  all  friends  of  the  Law 
School.  He  comes  of  an  old  and  well  known  New  England  fam- 
ily." His  father,  Jeremiah  Smith,  was  Chief  Justice  and  Gover- 
nor of  New  Hampshire  in  the  early  part  of  the  Century,  and  the 
intimate  friend  of  Fisher  Ames,  Daniel  Webster,  and  Jeremiah 
Mason. 

Judge  Smith  was  born  in  1837,  a  graduate  of  Harvard  in  1856, 
of  the  Law  School  in  1 860-61.  In  1867,  at  the  age  of  thirty, 
and  only  six  years  after  leaving  the  Law  School,  he  was  appointed 


LAXGDELL  PERIOD.  445 

a  justice  of  the  Supreme  Court  of  New  Hampshire,  which  posi- 
tion he  resigned,  in  1874,  to  resume  practice  of  the  law  at  Dover, 
X.  II. 

The  increase  in  the  amount  of  tuition  fees  enabled  the  Corpor- 
ation to  appoint  a  new  Assistant  Professor,  Samuel  Williston, 
April  28,  1890.  Mr.  Williston  born  in  Cambridge,  September  24, 
1 86 1,  graduated  at  Harvard  in  1882,  and  from  the  Law  School  in 

1888.  In  that  year,  he  won  the  Harvard  Law  School  Association 
prize  by  an  essay  on  the  History  of  the  Late-  of  Business  Cor- 
porations before  1800.  (See  Harvard  Late-  Review,  Vol.  II.)     He 
also  represented  his  Class  at  the  Commencement  exercises.     In 

1889,  he  was  private  secretary  to  Mr.  Justice  Gray  of  the  United 
States  Supreme  Court,  and  later  practised  law  in  Boston  in  con- 
nection with  the  firm  of  Hyde,  Dickinson  and  Howe. 

Experience  having  shown  that  the  existing  regulations  con- 
cerning the  admission  and  continuous  registration  of  special  stud- 
ents permitted  some  persons  to  maintain  a  nominal  connection 
with  the  School  who  took  no  part  whatever  in  its  work,  the  Law 
Faculty  checked  this  evil  by  adopting  new  regulations  requiring 
examinations  to  be  passed  by  special  students(i)  in  order  to 
remain  in  the  School. 

In  1890-91,  Professor  Smith  began  his  work  as  Story  Profes- 
sor, giving  First  Year  Torts,  Second  Year  Agency,  and  Third 
Year  Corporations  and  Agency.  The  new  Assistant  Professor, 
Williston,  gave  First  Year  Contracts  and  Civil  Procedure  at  Com- 
mon Law,  and  Second  and  Third  Year  Bills  and  Notes. 

Professor  Ames  gave  Keener's  famous  courses  on  Quasi  Con- 
tracts, as  well  as  his  own  former  courses  on  Trusts  and  Partner- 
ship. H.  W.  Chaplin  (appointed  March  31,  1890),  was  Lecturer 
on  Criminal  Law;  Joseph  H.  Beale  (L.  S.,  1884-87,  appointed 
April  28,  1890),  Lecturer  on  Damages;  William  Schofield  (ap- 


(i)  "Persons  who  are  not  candidates  for  a  degree  may  enter  the  School 
as  special  students  at  any  time  without  examination,  and  avail  them- 
selves of  its  advantages  in  whatever  manner  and  to  whatever  extent  they 
see  fit.  They  must,  however,  if  not  college  graduates,  produce  certificates 
of  good  moral  character,  and  give  two  references  for  further  information. 

A  special  sudent  who  has  been  in  the  School  during  any  part  of  any 
academic  year  must,  in  the  regular  examinations  held  at  the  end  of  the 
year,  or  held  in  the  following  September,  pass  an  examination  in  at  least 
three  subjects. 

Xo  student,  whether  a  candidate  for  a  degree  or  a  special  student,  who 
has  not  in  any  year  passed  an  examination  in  at  least  three  subjects  will 
be  allowed,  unless  by  vote  of  the  Faculty,  to  continue  as  a  special  student 
in  the  School." 


446  HARVARD  LAW  SCHOOL. 

pointed  June  9,  1890),  Instructor  in  Roman  Law.  A  new  course 
on  Peculiarities  of  Massachusetts  Law  and  Practice  was  made 
possible  for  five  years  by  an  anonymous  annual  gift  of  $1,000, 
coming  through  Louis  D.  Brandeis,  the  Secretary  of  the  Harvard 
Law  School  Association;  and  Frank  Brewster  (L.  S.  1880-83), 
was  appointed  as  Lecturer,  May  12,  1890. 

In  1891-92,  the  extraordinary  growth  of  the  School,  rising 
suddenly  from  285  to  370,  caused  Langdell  to  state  in  his  Report 
of  December,  1891,  that  Austin  Hall,  which  in  1883  was  supposed 
to  be  large  enough  to  furnish  ample  accommodation  for  all  the 
students  who  would  seek  admission  to  the  School  during  the  next 
fifty  years,  was  already  outgrown. (i) 

Such  being  the  situation  to  be  coped  with,  the  time  had  now 
arrived  when  another  step  could  be  taken  towards  the  culmination 
of  the  scheme  of  legal  education  planned  by  Eliot  and  Langdell. 


(i)     See  Report  of  the  Dean,  December,  1891 : 

"The  School  is  now  face  to  face  with  a  new  and  very  difficult  problem. 
When  Austin  Hall  was  erected  it  was  expected  to  furnish  ample  accom- 
modation for  all  the  students  who  would  seek  admission  to  the  School 
during  the  next  fifty  years.  Only  eight  of  those  fifty  years  have  now 
passed ;  and  yet  the  building  is  already  outgrown.  I  believe  300  was  the 
number  that  it  was  intended  to  accommodate,  and  the  School  now  exceeds 
that  number  by  more  than  fifty.  Under  these  circumstances,  what  is  to 
be  done?  The  case  is  a  very  peculiar  one.  If  the  question  were  merely 
one  of  giving  instruction  to  an  increased  number  of  students,  a  solu- 
tion of  it  might  be  found  in  the  division  of  the  larger  classes  into  sec- 
tions, though  it  is  believed  that  a  majority  of  the  Faculty  would  regret 
the  necessity  even  of  such  a  measure.  But  the  question  of  giving  instruc- 
tion to  so  large  a  number  of  students  as  the  School  is  likely  very  soon  to 
have,  does  not  present  the  only,  nor  even  the  chief  difficulty  with  which 
we  are  confronted.  Austin  Hall  is  the  place  where  our  students  do  their 
work  as  well  as  receive  their  instruction ;  and  this  is  a  condition  of  things 
which  cannot  be  changed  or  interfered  with  without  irreparable  injury 
to  the  School.  The  reason  is  that  the  Library  is  in  Austin  Hall  and  that 
constant  access  to  that,  on  the  part  of  every  student,  is  indispensable  if 
the  present  methods  of  the  School  are  to  be  maintained;  and  yet  both 
the  Library  and  the  students'  reading-room  are  already  taxed  to  their 
utmost  capacity." 

The  Harvard  Law  Review  said  editorially  in  December,  1891 : 

"The  astonishing  increase  in  the  membership  of  the  Law  School  this 
year  must  be  very  gratifying  not  only  to  the  instructors,  as  evidence  of 
appreciation  of  their  work,  but  to  all  who  are  interested  in  the  School 
and  its  methods.  The  Dean  especially  must  take  great  satisfaction  in  the 
prosperity  of  the  School  and  in  the  assured  success  and  firm  establishment 
of  the  method  of  instruction  to  which  he  has  given  so  much  thought  and 
so  many  years  of  devoted  effort.  To  be  sure,  it  is  not  possible  to  say 
that  the  growing  confidence  in  the  Langdell  method  has  been  the  sole 
cause  of  the  increase  of  students  in  the  present  year ;  .  .  .  yet  such  increased 
confidence,  warranted  as  it  is  by  the  success  of  recent  graduates  of  the 
School,  and  spread  through  the  profession,  as  we  are  glad  to  acknowledge, 
by  the  influence  of  the  Harvard  Law  School  Association,  is  believed  to 
be  the  chief  cause  of  the  present  numbers." 


LANGDELL  PERIOD.  447 

For  years,  the  ideal  towards  which  they  had  both  been  striving 
was  to  make  the  Law  School  a  graduate  school  in  every  sense  of 
the  word.  It  was  now  determined  to  require  an  admission  exam- 
ination for  all  persons  who  were  not  college  graduates,  whether 
candidates  for  the  degree  of  LL.  B.  or  not.  Up  to  this  time, 
special  students  had  not  been  subject  to  any  admission  examin- 
ation, with  the  result  that  persons  not  desiring  to  be  examined 
entered  as  specials  instead  of  as  candidates  for  a  degree.  More- 
over, non-graduates  who  were  candidates  for  a  degree  had  been 
examined  only  in  Latin  or  some  other  foreign  language,  and  in 
Blackstone. 

The  Law  Faculty  had  taken  preliminary  action  on  March  23, 
1891,  towards  changing  the  situation,  when  it  was  voted: 
"that  at  the  beginning  of  the  academic  year  1893-94  and  there- 
after persons  who  are  not  graduates  of  colleges  shall,  whether 
candidates  for  a  degree  or  not,  be  admitted  to  the  School  only 
upon  passing  the  admission  examinations." 

On  November  10,  1891,  the  Law  Faculty  passed  a  more 
detailed  vote  prescribing  the  form  of  examination  for  all  non- 
college  graduates  seeking  entrance.  ( I ) 

The  Lecturers  during  this  academic  year,  1891-92,  were: 
Frederick  P.  Fish  (appointed  April  13,  1891),  on  Patent  Law; 
Joseph  Henry  Beale  Jr.  (appointed  May  12,  1891),  on  Criminal 
Law  and  Carriers;  Frank  Brewster  was  appointed  Nov.  9,  1891, 
as  Instructor  on  Peculiarities  of  Massachusetts  Law  and  Prac- 
tice. 


(i)  "Voted  that:  "At  the  beginning  of  the  academic  year  1893-94  and 
thereafter,  all  persons  who  shall  not  be  entitled  to  enter  the  School  as 
candidates  for  a  degree  without  examination  will  be  required,  as  a  con- 
dition of  being  admitted  to  the  School,  to  pass  satisfactory  examination 
on  the  following  subjects: 

(I)  Latin — Candidates      will      be      required      to      translate      (without 
the  aid  of  grammar  or  dictionary)    passages  selected  from  the  following 
books:  Caesars  Commentaries  on  the  Gallic  War,  Book  I-IV,  (or  Books 
I-III  and  Sallust's  Cataline)   and  Cicero's  Four  Orations  against  Cataline 
and  his  Oration  for  Archias;  and 

(II)  to  translate  at  sight  average  passages  from  Caesar  and  Cicero's 
Orations. 

(III)  French — Candidates  will  be  required  to  translate    (without  the 
aid   of   grammar   or    dictionary)    passages    from    standard    French    prose 
authors  and  also  to  render  passages  of  easy  English  prose  into  French. 

The  Faculty  will  at  their  discretion  permit  some  other  modern  language 
to  be  substituted  for  French. 

(IV)  Blackstone's  Commentaries  (exclusive  of  editors'  notes)." 

A  rule  was  also  adopted  by  the  Law  Faculty,  requiring  candidates  for 
a  degree,  as  well  as  special  students,  to  pass  at  the  end  of  their  first  year 
in  at  least  three  subjects  as  a  condition  to  remaining  in  the  School. 


448  HARVARD  LAW  SCHOOL. 

The  year  1892-93  opened  with  so  many  students — 405 — and 
with  so  prosperous  a  condition  of  the  finances — there  having  been 
a  surplus  of  $18,314.14  on  Aug.  31,  1892— that  it  had  been  found 
possible  to  appoint  a  new  Professor;  and  on  April  25,  1892, 
Eugene  Wambaugh  had  been  chosen. 

Mr.  Wambaugh  was  born  at  Brookville,  Ohio,  Feb.  29,  1856; 
he  graduated  from  Harvard  in  1876  (receiving  the  degree  of  A. 
M.  in  1887),  and  from  the  Harvard  Law  School  in  1880.  From 
1880  to  1889,  ne  had  been  a  successful  lawyer  at  the  Cincinnati 
Bar,  and  from  1889  to  1892,  he  had  been  Professor  in  the  State 
University  of  Iowa,  where  he  had  successfully  introduced  the 
Langdell  method  of  instruction. 

At  the  same  time  a  new  Assistant  Professor  was  appointed — 
Joseph  Henry  Beale  Jr.,  who  had  already  been  Instructor  in 
Criminal  Law.  Mr.  Beale  was  born  at  Dorchester,  Mass.,  Oct. 
12,  1 86 1,  graduated  from  Harvard  in  1882,  and  from  the  Har- 
vard Law  School  in  1887,  receiving  both  the  degrees  of  LL.  B. 
and  A.  M.  He  taught  school  at  Concord,  N.  H.,  for  one  year, 
and  practiced  law  in  Boston,  from  1888  to  1892, 

The  following  Lecturers  served  during  the  year — Frank  Brew- 
ster  (appointed  April  25,  1892),  on  Massachusetts  Law  and 
Practice;  Frederick  P.  Fish  (appointed  Sept.  27,  1892),  on 
Patent  Law;  James  Byrne  (LL.  B.  1882,  appointed  Sept.  27, 
1892),  on  New  York  Code  Practice. 

During  the  summer,  the  student's  reading  room  in  Austin  Hall 
was  enlarged  by  taking  in  the  space  at  the  east  end  of  the  library 
stack,  making  38  more  seats — a  total  of  242. 

Owing  to  the  size  of  the  First  Year  Class — 140 — as  contrasted 
with  106  in  1890-91  and  90  in  1889-90 — it  was  found  necessary 
to  divide  it  into  two  sections  in  Contracts,  Property,  Torts,  and 
Civil  Procedure.  "In  consequence  of  this  division,"  said  Presi- 
dent Eliot  in  his  Annual  Report  for  1891-92,  "the  lecture  rooms 
of  the  School  are  used  more  constantly  in  the  morning  than  is 
desirable ;  but  the  remedy  for  this  condition  of  things  is  to  use  the 
afternoon  hours  for  lectures  to  a  greater  extent  than  heretofore. 
It  has  been  the  rather  luxurious  practice  of  the  School,  thus  far, 
to  use  for  lectures  chiefly  the  hours  from  nine  to  one.  It  may 
hereafter  be  necessary  to  use  the  afternoon  hours  freely,  as  other 
departments  of  the  University  are  accustomed  to  do." 

The  courses  were  divided  among  the  Professors  as  follows: 
\Vambaugh  and  Williston  took  Contracts;  Gray  and  Beale  took 


LANGDELL  PERIOD.  449 

Property ;  Smith  gave  his  course  in  Torts  in  two  sections ;  Wam- 
baugh  and  Williston  gave  Civil  Procedure.  At  the  end  of  the 
year,  "the  method  did  not  find  favor,"  said  President  Eliot,  "and 
it  has  been  abandoned  in  all  subjects  except  Torts." 

The  most  notable  feature  of  the  year  was  the  final  adoption  of 
the  Case  Book  System  by  Professor  Thayer — the  last  of  the  older 
Professors  to  issue  a  book  of  cases.  His  Cases  on  Evidence  was 
published  in  the  summer  of  1892 — "the  need  has  long  been  felt" 
— said  the  Harvard  Law  Review  (Vol.  V).(i) 

The  publication  also  of  Professor  Gray's  sixth  volume  of 
Cases  on  Property  was  noted  by  the  Harvard  Law  Review  as, 
"thus  completing  a  series  which  in  its  comprehensiveness,  judi- 
cious arrangement  and  selection  and  general  adequacy  for  the 
purpose  of  instruction  under  the  case  system  is  susceptible  of 
little  improvement.  The  members  of  this  School  have  indeed 
cause  for  gratitude  to  Professor  Gray,  who,  at  the  expense  of  an 
untold  amount  of  labor,  thought,  and  time  has  so  materially 
lightened  the  work  and  the  difficulties  of  those  who  have  had  the 
privilege  of  studying  under  his  guidance." 

November  25,  1892,  the  Law  Faculty  passed  a  still  further 
restrictive  vote,  which  practically  abolished  all  distinction  between 
special  students  and  regular  candidates  for  a  degree.  (2) 

In  the  spring,  the  Law  Faculty  voted,  March  31,  1893,  to  place 
the  graduates  of  certain  law  schools  in  the  same  category  as 
college  graduates,  so  far  as  to  exempt  them  from  the  necessity  of 
admission  examinations — although,  if  they  desired  the  degree  of 
LL.  B.  from  the  School,  they  must  still  pass  such  examination.  (3) 

1 i )  In  the  preface  to  his  book,  Professor  Thayer  said :    "I  have  been 
driven  to  the  preparation  of  this  book  by  the  necessities  of  my  classes 
at  the  Harvard  Law   School.     With  the  growth  of  the  School  it  is  no 
longer  possible  to  rely  merely  on  our  Library.     ...     It  furnishes  a  text 
book  for  that  careful  preliminary  study  which  should  prepare  all  who  are 
to   take   part  in  the   regular   conferences  between   an  instructor   and  his 
pupils.     My  experience  confirms  that  of  others,  who  have  found,  in  deal- 
ing with  our  system  of  law,  that  the  best  preparation  for  these  exercises  is 
got  from  the  study  of  well  selected  cases." 

(2)  Up  to  this  time,  even  under  the  latest  rules,  if  a  student  passed 
the   first  year   examinations  he   could   remain   in   the   School   as   long  as 
he  liked  without  further  test.    Now  it  was  voted  that : 

"No  student  whether  candidate  for  a  degree  or  a  special  student  who 
fails  to  pass  an  examination  annually  in  at  least  three  subjects  will  be 
allowed  unless  by  vote  of  the  Faculty  to  continue  in  the  School.  Examin- 
ations in  first  year  subjects  may  be  taken  at  the  end  of  the  year  or  in 
the  following  September." 

(3)  "Voted:  That  the  degree  of  Bachelor  of  Laws,  if  obtained  at  a 
law  School  in  which  the  regular  course  of  study  is  not  shorter  than  two 


450  HARVARD  LAW  SCHOOL. 

There  was  still  ever  before  the  Faculty,  the  great  ideal  of  making 
the  School  a  purely  graduate  school.  As  Professor  Ames  said  in 
the  Harvard  Graduate  Magazine,  in  January,  1893 : 

j 

It  seems  not  unreasonable  to  hope  that  the  Law  Faculty  may 
soon  see  its  way  to  admit  as  candidates  for  the  degree  in  Law 
only  those  who  have  already  taken  the  preliminary  degree  in  Arts 
or  Science,  or  give  satisfactory  evidence  of  equivalent  mental 
training.  Then  the  Law  School,  like  the  Divinity  School  and  the 
Graduate  School,  will  be  placed  upon  a  true  University  basis. 

Such  a  step  the  Faculty  took  by  vote  of  April  18,  1893. (i) 
Under  the  above  vote,  four  classes  of  students  were  eligible  for 
degrees,  after  the  year  1895-96: 

(a)  Holders  of  academic  degrees  from  certain  specified  col- 
leges. 


academic  years  of  seven  months  each,  will  secure  admission  without  ex- 
amination in  Latin,  French  and  Blackstone.  Persons  thus  admitted  will 
be  classed  either  as  special  students  or  as  candidates  for  a  degree  at  their 
option ;  but  until  they  pass  examinations  in  Latin,  French  and  Blackstone, 
they  cannot  receive  the  degree  of  Bachelor  of  Laws  from  this  University." 

(i)     President  Eliot  in  his  Annual  Report  for  1892-93  thus  stated  the 
vote  and  its  design : 

"It  was  voted  that,  after  the  academic  year  1895-96,  no  persons  shall  be 
admitted  without  examination  as  candidates  for  the  Law  degree,  except 
Bachelors  of  Arts,  Literature,  Philosophy,  or  Science,  at  some  one  of  106 
institutions  named,  .and  persons  qualified  to  enter  the  Senior  Class  of 
Harvard  College.  They  had  already  enacted  in  the  previous  year  that 
special  students  must  pass  a  satisfactory  examination  in  Latin,  French, 
and  Blackstone's  Commentaries,  unless  they  hold  an  academic  degree  from 
some  institution  not  enumerated  in  the  list  just  mentioned,  or  from  a 
law  school  which  confers  the  degree  of  law  only  after  an  examination 
upon  a  two  years'  course  of  at  least  seven  months  each.  They  further 
decided  that  special  students  who  after  passing  the  .admission  examin- 
ation shall  reside  three  years  at  the  School,  and  pass  in  due  course  the 
requisite  legal  examinations,  may  receive  the  degree  of  LL.B.,  if  they  at 
any  time  during  the  course  entitle  themselves  to  enrollment  as  regular 
students,  or  if  they  attain  a  mark  within  five  per  cent,  of  that  required 
for  the  degree  cum  laude.  After  the  year  1895-96,  therefore,  the  members 
of  the  regular  classes  in  the  Law  School  must  all  have  obtained  before 
they  entered  the  Law  School  a  respectable  degree  in  Arts,  Literature, 
Philosophy,  or  Science;  but  persons  who  have  entered  the  School  as 
special  students  may  nevertheless  obtain  the  degree  by  passing  the  legal 
examinations  with  distinction  on  the  whole  course  of  three  years.  Al- 
though 106  institutions  were  named  in  the  preliminary  list  of  institutions 
whose  graduates  would  be  admitted  to  the  Law  School  without  examina 
tion  as  candidates  for  a  degree,  it  was  not  supposed  that  the  list  was 
complete,  and  it  will  doubtless  be  enlarged  from  time  to  time.  The  Law 
Faculty  in  taking  this  action  gives  effective  support  to  what  may  be  called 
the  primary  academic  degrees  in  the  United  States,  that  is,  to  the  degrees 
of  Bachelor  of  Arts,  Literature,  Philosophy,  and  Science ;  and  it  is  the 
first  law  school  in  the  country  to  give  that  support  to  colleges  and  scientific 
schools.' " 


LANGDELL  PERIOD.  451 

(b)  Men  qualified  to  enter  the  Senior  Class  of  Harvard  Col- 
lege. 

(c)  Special  students  who  resided  three  years  and  passed  all 
examinations,  including  admission. 

(d)  Special  students  who  received  on  the   full  three  years' 
course  an  average  within  5  per  cent,  of  the  honor  mark. 

There  were  three  classes  eligible  for  admission  as  special 
students : 

(e)  Holders  of  academic  degrees  from  colleges  not  specified 
in  the  list. 

(f)  Graduates   of    law    schools   having   a   certain   prescribed 
course. 

(g)  Men  who  passed  a  satisfactory  admission  examination. 
In    1893-94.   the  number  of   students   dropped    from   405   to 

367- (0 

One  further  restrictive  measure  was  voted  by  the  Law  Faculty 
November  6.  1893 : 

Voted:  That  after  the  academic  year  1894-95,  admission  to  the 
second  year  shall  be  limited  to  students  who  have  been  members 
of  another  law  school  for  at  least  one  academic  year  of  not  less 
than  seven  months. 

This  action  was  taken  to  prevent  undergraduates  from  com- 
bining their  college  work  with  the  first  year  Law  School  course, 
a  combination  deemed  detrimental  alike  to  the  student  and  to  the 
School,"  said  Professor  Ames. 

The  discontinuance  of  the  experiment  of  dividing  the  first 
year  classes  into  sections  enabled  the  Faculty  to  arrange  for  three 
new  half  courses.  Wambaugh  gave  a  course  on  Insurance — a 
subject  in  which  he  had  large  experience  both  in  teaching  and 
practice  before  he  became  Professor  at  the  School ;  Beale  gave  a 
course  on  Damages  for  the  first  time,  though  several  series  of 
lectures  on  the  general  subject  had  been  given  by  him  in  1891-92 
and  1892-93  and  by  others  in  previous  years. 

"It  is  believed,"  said  the  Harvard  Law  Review  (Vol.  VII), 
"that  this  is  the  first  attempt  in  America  to  treat  the  Law  of 

(i)  This  was  largely  the  effect  of  the  new  requirement  of  an  admis- 
sion examination  for  all  non-college  graduates,  whether  candidates  for 
the  LL.  B.  degree  or  special  students.  There  was  a  great  decrease  in 
special  students — from  76  to  23.  The  unusual  loss  however  was  more  that 
made  up  by  the  gain  in  the  quality  of  the  students ;  for  the  percentage  of 
college  graduates  rose  to  77  per  cent. — an  increase  of  7  per  cent,  over 
the  preceding  year. 


452  HARVARD  LAW  SCHOOL. 

Damages  thoroughly  and  scientifically."  Beale  also  gave  a  course 
on  Conflict  of  Laws,  the  last  course  on  that  subject  having  been 
given  by  Keener,  six  years  previously.  The  course  on  the  New 
York  Code  Practice  was  given  by  Ernest  L.  Conant  (LL.  B. 
1889,  appointed  in  place  of  James  Byrne,  who  was  appointed  May 
29,  1893,  but  did  not  serve).  The  course  on  Massachusetts  Law 
and  Practice  was  again  given  by  Frank  Brewster  (appointed 
May  29,  1893).  The  course  on  Patent  Law  announced  to  be 
given  by  Frederick  P.  Fish  (appointed  May  29,  1893)  was 
unavoidably  postponed. 

The  year  1894-95  showed  a  considerable  gain  of  students — to 
413.  "The  greatest  matter  for  congratulation,"  said  the  Harvard 
Law  Review  (Vol.  VIII)  ;  "is  probably  to  be  found  in  the  in- 
creased number  of  other  colleges  which  send  their  graduates 
thither — 50  this  year  as  against  about  30  last  year." 

Ernest  L.  Conant  was  appointed  Instructor  in  Law  September 
25,  1894;  and  Frank  Brewster,  Instructor  in  Massachusetts  Law 
and  Practice,  April  2,  1894.  A  new  course  on  the  Law  of  Persons 
was  given  by  Professor  Smith.  A  new  half  course  on  Contracts 
was  given  by  Williston;  and  Ames,  assisted  by  Beale,  resumed 
his  half  course  in  Legal  History,  which  had  been  discontinued 
for  many  years;  Wambaugh's  course  on  Insurance  was  made  a 
full  course. 

In  June,  1895,  Langdell  having  served  as  Dean  of  the  Law 
School  for  twenty-five  years,  "with  great  honor  to  himself  and 
the  School,"  said  President  Eliot,  resigned  his  position;  and  on 
June  1 8,  1895,  James  Barr  Ames,  who  had  been  in  the  service  of 
the  School  twenty-two  years,  was  chosen  Langdell's  successor  as 
Dean;  and  the  Corporation  voted  that  it  desired  to  record  its 
sense  "of  the  extraordinary  educational  and  financial  success  which 
has  attended  Professor  Langdell's  labors  as  Dean  and  Professor, 
and  to  express  the  hope  that  the  labors  of  his  coming  years  may 
be  as  fruitful  to  the  School  and  the  legal  profession,  as  those  of 
the  past  twenty-five  years  have  been." 

Langdell's  associates  in  the  Law  Faculty,  James  B.  Thayer, 
Jeremiah  Smith,  John  C.  Gray,  James  B.  Ames,  Eugene  Wam- 
baugh,  Samuel  Williston  and  Joseph  H.  Beale,  Jr.,  together  with 
Mr.  Justice  Oliver  Wendell  Holmes,  a  former  colleague,  wishing 
to  commemorate  this  25th  Anniversary,  published,  in  the  Harvard 
Law  Review  for  April  25,  1895  (Vol.  IX,  No.  i),  the  number 
being  most  willingly  surrendered  by  the  editors  for  this  purpose, 


o 
O 

M-t 

O 


•ML 


LANGDELL  PERIOD.  453 

a  collection  of  original  legal  essays,  the  whole  bearing  this  dedica- 
tion :  "To  C.  C.  Langdell,  in  honor  of  his  genius  as  a  lawyer,  his 
originality  as  a  teacher  of  law,  his  sagacity  as  a  law-school  admin- 
istrator, and  his  devoted  and  successful  services  as  Dean  and  Pro- 
fessor during  the  last  twenty-five  years." 

On  June  23,  1895,  came  the  remarkable  tribute  to  Langdell  by 
the  Harvard  Law  School  Association,  the  Ninth  Annual  Meeting 
and  Dinner  being  held  "in  especial  honor  of  Christopher  Colum- 
bus Langdell,"  of  which  President  Eliot  said  in  his  Annual 
Report : 

The  former  members  of  the  School  assembled  in  large  num- 
bers, and  the  whole  occasion  was  a  worthy  commemoration  of 
Professor  Langdell's  great  services  to  the  School  and  the  pro- 
fession. 

Professor  Langdell's  administration  has  been  remarkable  for 
four  things :  first,  for  the  invention  and  adoption  of  a  new 
method  of  teaching  Law ;  second,  for  the  adoption  of  a  new 
mode  of  training  teachers  of  Law;  third,  for  a  great,  though 
gradual  elevation  of  the  standard  of  the  degree  in  Law;  and 
fourth,  for  success  in  regard  to  number  of  students,  increase  of 
endowment,  improvement  of  equipment,  and  income  from  tuition- 
fees. 


CHAPTER  XLV. 
LANGDELL  AS  A  TEACHER. 

Of  Professor  Langdell's  personality  as  a  teacher,  many  graphic 
and  discriminating  accounts  were  written  after  his  death (i).  "He 
was  gentle  in  his  address  to  the  point  of  diffidence.  The  impres- 
sion that  his  personality  left  upon  his  students  was  of  a  distant, 
lofty  spirit  in  aloof  communion  in  another  world  with  voiceless 
kindred  spirits — and  curiously  contrasted  with  the  dogmatic  vigor 
of  his  written  thoughts."  So  wrote  one  of  his  pupils. (2) 

Professor  Ames  said :  "While  it  was  a  liberal  education  to  fol- 
low the  working  of  his  mind  in  the  class  room,  close  attention  and 
hard  thinking  were  demanded  of  those  who  would  keep  up  with 
his  compact  reasoning.  His  teaching  was  pre-eminently  fitted  for 
the  cleverest  men  in  the  School."  And  in  his  life  of  Langdell  in 
Great  American  Lawyers,  Ames  mentions  among  his  prominent 
characteristics — his  cheerfulness,  his  painstaking,  his  passion  for 
truth,  his  exactness  and  his  conservatism. 

Professor  Beale  (L.  S.  1884-87)  wrote  of  his  student  days 
under  Langdell (3) : 

When  we  entered  his  lecture  room,  we  were  struck  by  the  mas- 
sive intelligence  of  his  brow.  We  admired  his  severe  and  almost 
impassive  face,  and  we  seemed  to  find  the  quiet,  intellectual  at- 
mosphere of  the  cloister.  In  our  time,  as  a  result  of  his  failing 
sight,  he  never  used  the  Socratic  method  in  his  teaching.  He  sim- 
ply talked,  slowly  and  quietly,  stating,  explaining,  enforcing  and 
re-enforcing  the  principles  which  he  found  in  the  case  under  dis- 
cussion. Our  note  books  read  like  his  articles  on  Equity  Juris- 
prudence; quiet,  forceful,  full  of  thought,  and  requiring  close 
study  to  follow  them.  Only  now  and  then,  when  some  subtle  point 
was  raised  by  Judge  Mack  or  Professor  Williston,  (not  then 
Judge  or  Professor),  his  face  would  light  up,  and  he  would  think 
aloud,  to  the  vast  delight  of  those  members  of  his  class  who  could 


(1)  See  articles  by  Professor  Eugene  Wambaugh,  Professor  Jeremiah 
Smith,  Professor  Joseph  H.  Beale  Jr.,  Professor  James  Barr  Ames,  and 
Austen  G.  Fox  in  Harvard  Law  Review,  Vol.  XX  (November,  1906). 

(2)  C.  C.  Langdell,  by  R.  W.  Gloag  (L.  S.   1890-93)   in  Albany  Law 
Journal,  Vol.  LXVIII   (1906). 

(3)  Harvard  Law  Review,  Vol.  XX  (Nov.,  1906). 


LANGDELL  AS  TEACHER.  455 

follow  him.  Those  were  halcyon  days.  And  once  in  a  great 
while,  something  would  amuse  him,  and  he  would  throw  back  his 
head  with  a  laugh  that  seemed  to  have  the  full  strength  of  his 
mind  in  it. 

It  was  largely  owing  to  Mr.  Langdell's  manner  in  class,  and  to 
his  careful  fullness  of  statement  and  of  discussion  that  his  law 
sometimes  seemed  too  academic ;  and  many  of  his  students  said 
if  they  did  not  really  feel,  that  his  teaching  was  magnificent  but  it 
was  not  law.  He  was  quoted  as  speaking  of  "a  comparatively  re- 
cent case  decided  by  Lord  Hardwicke,"  and  he  was  believed  to  re- 
gard modern  decisions  as  beneath  his  notice.  In  the  subjects  of 
Equity  and  Suretyship,  which  he  was  then  teaching,  one  might 
have  fancied  from  his  list  of  cases  that  Lord  Eldon  was  still  on 
the  woolsack  and  that  America  was  legally  undiscovered.  .  .  . 
His  list  of  cases  on  Specific  Performance  of  Contracts  held  out 
the  fond  hope  that  we  should  get  as  near  to  the  present  as  the  case 
of  Lumley  r.  Wagner ;  but  there  was  only  time  in  the  last  lecture 
for  a  hurried  but  scathing  criticism  of  that  decision.  His  manner 
of  treating  the  subjects  he  taught  was  unimpassioned  and  coldly 
logical,  and  his  intellectual  deliberation  seemed  mediaeval. 

The  quietness  of  his  teaching,  however,  was  the  quietness  of  in- 
tensive force,  and  the  antique  seeming  of  his  law  was  all  on  the 
surface.  We  found  that  we  were  carrying  away  his  ideas  in  our 
heads  as  well  as  in  our  note  books,  and  that  those  ideas  really 
represented  the  law  of  the  present  time. 

Austen  G.  Fox  (L.  S.  1870-71)  wrote: 

Langdell — How  fond  we  were  of  you,  our  great  teacher,  our 
wise  and  patient  friend !  .  .  .  We  were  drawn  to  you  at  first 
by  no  display  of  learning — for  you  were  ever  incorrigibly  modest, 
— but  by  your  simple,  unaffected  friendliness  when  we  sought  your 
aid,  you  filled  us  with  faith  in  yourself  and  with  courage  to  tread 
the  true  path,  no  matter  what  the  effort.  So  close  was  our  friend- 
ship and  so  personal  your  leadership,  that  we  are  inclined  to  won- 
der, whether,  after  all,  the  question  is  not  so  much  what  we  study 
as  with  whom  we  study. 

The  best  and  most  elaborate  account  of  Langdell,  however,  is 
that  written  by  William  Schofield  (L.  S.  1880-83),  who  was  for 
some  years  an  Instructor  in  Torts  and  Criminal  Law  in  the 
School,  now  Judge  of  the  Superior  Court  in  Massachusetts. (i) 

I  first  saw  him  as  a  teacher  in  the  fall  of  1880,  at  the  opening 
of  the  Harvard  Law  School,  in  the  course  on  Contracts.  He  was 
then  fifty-four  years  of  age  and  seemed  to  be  in  his  physical  and 

(i)  Christopher  Columbus  Langdell,  by  W.  Schofield  in  Amer.  Law 
Register,  Vol.  XLVI,  N.  S.  (1906). 


456  HARVARD  LAW  SCHOOL. 

mental  prime.  He  was  of  middle  height,  somewhat  stout  in  build. 
His  head  was  large  and  well  formed  and  firmly  set  upon  his 
shoulders.  His  hair  was  dark,  with  no  trace  of  baldness,  and  he 
wore  a  full  beard.  Neither  his  hair  nor  his  beard  had  begun  to 
turn  gray.  His  forehead  was  large  and  square,  and  suggested 
logical  power.  His  eyes  were  brown,  but  not  especially  notice- 
able except  for  the  fact  that  they  looked  at  you  from  behind  old- 
fashioned  spectacles  with  a  keen  but  kindly  glance.  His  voice 
was  low  and  mild.  Sallust  in  describing  Catiline  takes  note  of 
his  uneven  walk  (citus  modo,  modo  tardus).  Professor  Lang- 
dell's  step  was  regular,  but  heavy  and  slow.  There  was  no  sug- 
gestion in  it  of  nervousness,  or  of  turning  backward.  His  whole 
aspect  was  that  of  a  modest,  learned,  but  strong  and  kindly  man. 

He  ascended  the  platform  on  the  second  floor  of  the  old  Dane 
Hall,  and  opened  the  course  with  a  brief  statement  of  the  nature 
of  a  contract.  Then  he  called  upon  some  student  to  state  the  case 
of  Payne  v.  Cave,  the  first  case  in  his  collection  of  cases.  .  .  . 
After  the  case  had  been  stated,  a  discussion  followed  of  the  point 
decided.  This  fairly  broke  the  ice,  and  the  students  soon  learned 
what  was  expected  of  them  under  the  Langdell  System. 

The  mental  characteristics  of  Professor  Langdell  were  dis- 
played prominently  from  the  start.  His  dominant  purpose  seemed 
to  be  to  bring  out  not  only  the  decision  of  each  case,  but  the 
reason  for  the  decision.  Students  soon  learned  that  any  position 
they  might  advance  was  pretty  soon  to  be  followed  by  the  ques- 
tion, "Could  you  suggest  a  reason?"  This  came  with  such  fre- 
quent iteration  that  it  was  something  of  a  by-word.  To  this  day 
the  question  "Could  you  suggest  a  reason,"  will  probably  produce 
a  smile  among  old  pupils  of  Professor  Langdell. 

Another  point  upon  which  he  laid  stress  was  the  correct  use 
of  terms.  We  were  constantly  speaking  of  "offer,"  "acceptance," 
"consent,"  "consideration."  Occasionally  Professor  Langdell 
would  rap  impatiently  upon  the  desk  and  say,  "Gentlemen,  I 
should  like  a  little  more  precision  in  the  use  of  terms."  He  was 
thoroughly  fair  and  impartial  in  the  discussions.  If  a  student  in 
explanation  of  a  case  made  a  point  that  was  unusually  good,  Pro- 
fessor Langdell  would  remember  it,  and  sometimes  give  credit  to 
the  student  afterwards  by  name  when  he  mentioned  it, — a  distinc- 
tion of  great  importance  in  the  Law  School  world. 

It  can  hardly  be  said  that  Professor  Langdell  was  a  popular 
instructor.  If  compared  with  Judge  Story  in  this  particular  he 
would  suffer  much.  Professor  Langdell  was  always  intent  upon 
the  matter  in  hand,  and  nothing  could  divert  him  from  it.  Judge 
Story  on  the  other  hand,  overflowing  with  good  nature,  and 
gifted  with  a  marvelous  memory,  stored  with  knowledge  which 
he  loved  to  communicate,  was  often  led  away  from  the  subject 
of  his  lecture  and  was  bountiful  in  giving  compliments  to  the 
young  men.  If  a  student  answered  correctly  a  question  which 
suggested  the  answer,  the  Judge  would  say,  "You  are  right ;  Lord 


LANGDELL  AS  TEACHER.  457 

Mansfield  himself  could  not  have  answered  more  correctly."  To 
the  serious  mind  of  Professor  Langdell  this  would  seem  like 
trifling.  With  him  the  reasoning  powers  were  constantly  in  use  to 
the  neglect  of  the  other  faculties.  Although  he  had  collected  a 
number  of  volumes  of  cases,  he  never  displayed  any  facility  in  re- 
calling their  names  or  in  remembering  the  points  decided  in  them 
or  the  facts.  He  seemed  to  take  up  each  case  in  the  class  as  if  he 
had  never  seen  it  before.  He  went  over  all  the  steps  in  the 
reasoning  as  new  work  without  any  aid  from  or  reliance  upon 
memory.  His  method  was  a  daily  object  lesson  to  students  in 
thoroughness  and  accuracy.  Under  his  guidance  discussions 
which  would  otherwise  have  been  listless  and  unprofitable  became 
stimulating  and  fruitful.  His  students  soon  began  to  feel  that 
they  were  not  only  acquiring  knowledge  but  developing  new 
powers. 

In  conducting  his  reasoning  processes  he  was  very  hospitable 
to  suggestions,  but  independent  in  his  conclusions.  The  greatest 
names  compelled  no  allegiance  from  him,  unless  their  opinions 
were  based  upon  sound  reasons.  In  the  first  weeks  of  the  term, 
when  the  class  was  engaged  upon  the  subject  of  contract  by  letter, 
involved  in  the  case  of  Adams  z>.  Lindscll,  a  student  showed  Pro- 
fessor Langdell  a  passage  in  Guthrie's  translation  of  Savigny's 
Conflict  of  Lau's,  which  seemed  to  bear  on  the  point.  Mr.  Lang- 
dell took  the  book,  read  the  passage  carefully,  and  then  said, 
"That's  not  up  to  Savigny's  reputation."  He  held  the  book, 
however,  as  I  recollect  the  matter,  for  further  examination. 

Professor  Langdell  was  always  willing  to  reconsider  a  con- 
clusion in  the  light  of  new  suggestions.  Not  infrequently  in  new 
courses  with  which  he  had  not  become  thoroughly  familiar,  he 
would  recant  propositions  which  he  had  advanced  as  sound.  A 
student  recently  informed  me  of  a  course  in  which  Professor 
I^angdell  changed  his  opinion  in  regard  to  a  case  three  times  in 
the  course  of  one  week,  each  time  advancing  with  positiveness  a 
new  doctrine.  That  he  could  do  this  without  losing  the  respect 
or  confidence  of  his  students  shows  the  esteem  in  which  he  was 
held.  They  well  knew  that  he  was  a  teacher  of  originality  and 
great  industry,  with  no  object  but  to  discover  and  state  truly  the 
principles  of  the  law.  To  lose  confidence  in  him  for  changing 
his  position  upon  a  legal  proposition  would  be  as  absurd  as  to  lose 
confidence  in  Charles  Darwin  if  he  withdrew  a  tentative  conclu- 
sion found  to  be  false  after  more  extended  investigation.  Pro- 
fessor Langdell  studied  the  law  as  contained  in  the  reports  in  the 
same  spirit  in  which  the  great  scientists  study  the  phenomena  of 
nature. 

It  must  not  be  inferred,  however,  from  the  emphasis  here  given 
to  Professor  Langdell's  logical  tendencies  that  he  was  wholly 
given  up  to  reasoning.  He  was  a  man  of  deep  and  strong  feel- 
ings. He  relished  the  vigorous  expressions  sometimes  found  in 
the  reports,  such  as  "blowing  hot  and  cold."  In  referring  to  Sir 


458  HARVARD  LAW  SCHOOL. 

Ralph  Bovy's  Case,  where  the  plaintiff  put  into  a  declaration 
an  averment  which  should  have  been  held  back  for  a  replication, 
he  quoted  Lord  Hale's  expression,  "It  is  like  leaping  before  one 
comes  to  the  stile,"  with  a  twinkle  of  merriment  which  showed 
that  he  was  unmistakably  pleased.  It  should  be  mentioned  too 
that  he  was  interested  in  the  welfare  and  success  of  the  students. 
Many  acts  of  kindness  to  individuals  might  be  mentioned,  and  at 
the  end  of  the  course  he  was  always  glad  to  learn  that  any  of  the 
young  men  had  found  a  good  opening  in  an  office  or  elsewhere. 

Professor  Langdell's  sight  was  somewhat  defective  as  early  as 
1880.  This  defect  increased  with  advancing  age,  and  as  it  in- 
creased he  gradually  changed  his  method  of  instruction.  He 
finally  abandoned  the  Socratic  method  and  stated  and  analyzed 
the  cases  himself.  He  occasionally  did  this  in  dealing  with  com- 
plicated cases  long  before  he  adopted  it  as  a  practice.  For 
example,  the  case  of  Lancaster  v.  Evors  in  his  course  on  Equity 
Pleading  was  thus  considered.  On  such  occasions  Professor 
Langdell's  students  were  treated  to  unrivalled  exhibitions  of 
analytical  power.  Everything  pertaining  to  the  case  was  laid 
bare,  and  all  collateral  and  allied  topics  were  fully  discussed. 
This  method  of  teaching  by  the  Langdell  System  has  advantages 
over  the  Socratic  method.  It  enables  the  instructor  to  expound 
the  whole  case,  even  though  it  may  involve  principles  drawn  from 
widely  different  titles  of  the  law,  and  review  all  the  work  of  the 
judge.  On  the  other  hand,  in  a  course  conducted  by  oral  dis- 
cussion in  which  the  students  take  part  it  is  practically  necessary 
to  limit  the  consideration  of  each  case  to  the  point  which  is  the 
subject  of  the  particular  course.  When  Professor  Langdell 
adopted  the  method  of  personal  exposition  of  cases,  which  was 
his  sole  method  in  his  later  years,  he  wrote  his  lectures.  His 
teaching  in  the  class  room  then  exhibited  mainly  those  character- 
istics which  appear  in  all  his  written  works.  .  .  . 

He  had  a  high  regard  for  logical  symmetry,  but  he  recognized 
that  the  Common  Law  is  made  or  declared  by  the  courts,  and  he 
took  the  principles  which  he  used  as  his  premises  from  the  books 
of  reports.  He  vigorously  insisted  that  the  logical  inference  from 
correct  premises  was  the  rule  of  law.  This  fidelity  to  logical  in- 
ference made  him  conservative,  and  an  enemy  to  exceptions  and 
innovations.  It  was  this  characteristic,  as  I  conceive,  which  made 
him  unwilling  to  accept  the  doctrine  of  the  majority  of  the  court 
in  Lumlcy  v.  Gye,  although  he  did  not  expressly  reject  it.  But 
this  conservatism  was  accompanied  with  practical  good  sense,  and 
if  the  courts  took  a  step  which  he  deemed  unsound  in  principle,  he 
would  content  himself  with  pointing  out  the  error  and  the  conse- 
quences of  it  without  asserting  that  the  law  should  be  changed.  .  . 

The  reason,  with  him,  was  the  vital  question,  and  he  has  fre- 
quently pointed  out  the  evil  consequences  resulting  from  wrong 
reasons,  though  given  as  the  basis  for  right  decisions. 

His  conservatism  is  best  shown  in  those  parts  of  the  law  which 


LANGDELL  AS  TEACHER.  459 

invite  originality,  especially  in  equity.  In  his  view,  equity  is  a 
science  of  remedies,  and  he  never  indulged  in  mere  theories  or 
original  notions  of  something  supposed  to  be  natural  justice.  .  . 
This  conservatism  of  Professor  Langdell  is  a  striking  fact,  far 
more  noteworthy  in  a  teacher  of  law  than  it  be  in  a  judge.  Judges 
are  surrounded  with  safeguards  which  tend  to  make  them  con- 
servative. A  teacher  of  law  is  protected  against  empty  theorizing 
only  by  the  depth  and  soundness  of  his  own  mind. 

Of  his  contributions  to  the  development  of  legal  science,  the 
following  summary  has  been  made  by  Professor  Ames(i)  : 

In  his  analysis  of  contracts,  he  emphasized  the  distinction 
between  unilateral  and  bilateral  contracts;  and  these  terms,  which, 
essential  as  they  are  to  correct  legal  thinking,  were  hardly  to  be 
found  in  any  of  our  law  books,  a  generation  ago,  are  now  thor- 
oughly domiciled  in  our  legal  terminology. 

There  was  another  distinct  advance  in  the  law  of  Contracts, 
when  he  made  detriment  incurred  by  the  promisee  at  the  request 
of  the  promisor,  the  universal  test  of  a  consideration.  Sir  Fred- 
erick Pollock  in  an  appreciative  review  of  the  Brief  Survey 
refers  to  the  distinction  established  by  the  author  between  bills 
for  an  account  proper  and  bills  based  upon  an  "equitable  assump- 
sit"  as  "a  brilliant  example  of  Professor  Langdell's  method." 
Hardly  less  brilliant  is  his  statement  that  the  so-called  doctrine  of 
specific  performance  of  contracts  is  a  misnomer  in  the  case  of 
affirmative  contracts,  since  Equity  in  such  cases  enforces  not  the 
specific  performance  of  the  contract,  but  specific  reparation  for  its 
breach.  No  one  who  wishes  to  wrestle  with  the  fundamental 
conceptions  of  law  can  afford  to  overlook  Langdell's  classification 
of  rights  and  wrongs,  or  fail  to  profit  greatly  by  his  substitution 
of  the  terms  absolute  and  relative  rights  for  rights  in  rem  and 
rights  in  personcun. 

To  the  legal  expert,  the  Summary  of  Equity  Pleading,  the 
only  one  of  his  treatises  that  covers  its  subject,  is  the  best  exhibi- 
tion of  the  author's  great  powers  of  historic  insight,  acute 
analysis,  original  sagacious  generalization,  and  vigorous  terse 
expression.  His  derivation  of  the  system  of  Equity  Pleading 
from  the  ecclesiastical  system,  with  borrowings  from  the  Common 
Law  practice,  is  as  convincing  as  it  is  fascinating,  and,  read  in 
connection  with  the  English  cases  upon  Equity  Pleading,  demon- 
strates the  practical  importance  of  a  knowledge  of  legal  history 
by  those  who  are  administering  the  law.  Had  the  English  Equity 
judges  of  the  ijth  and  i8th  Centuries  been  familiar  with  the 
historical  development  of  Equity  Pleading,  as  described  by  Lang- 
dell,  suitors  would  have  been  saved  from  a  mass  of  costly  litiga- 


(i)  Reprinted  from  Professor  Ames'  Study  of  Christopher  Columbus 
Langdell  in  Great  American  Lawyers,  by  courtesy  of  The  John  C.  Win- 
ston Co.,  Philadelphia. 


460  HARVARD  LAW  SCHOOL. 

tion,  and  the  reports  would  not  have  been  encumbered  with  what 
must  be  considered  the  least  creditable  judgments  in  the  history 
of  English  Equity.  The  part  of  this  classical  treatise  which  is 
likely  to  have  the  most  far-reaching  influence  is  the  chapter  deal- 
ing with  the  nature  of  Equity  Jurisdiction.  It  is  an  ancient  maxim 
that  equity  acts  in  personam,  but  to  Langdell  belongs  the  credit 
of  emphasizing,  as  no  other  writer  has  emphasized,  the  importance 
of  this  maxim,  and  of  asserting  that  the  power  of  the  Chancellor, 
as  representative  of  the  Sovereign,  to  compel  the  defendant  to  do 
what  he  ought  to  do  and  refrain  from  doing  what  he  ought  not 
to  do,  is  the  key  to  the  whole  system  of  Equity.  This  conception 
has  dominated  all  his  writing  and  teaching  of  Equity. 

Of  the  great  work  of  his  life  in  conceiving  and  putting  into 
successful  operation  a  new  theory  and  system  of  legal  education 
and  of  its  widespread  influence,  description  is  given  in  other 
chapters  of  this  book.  In  the  words  of  Professor  Ames  again(i)  : 
"After  explaining  his  theory  of  legal  education  in  the  preface  to 
his  Cases  on  Contracts,  Langdell  never  wrote  a  word  in  its  behalf. 
His  triumph  was  won  solely  by  the  influence  of  his  teaching  upon 
his  pupils  and  by  the  impression  made  by  them  in  the  practice  of 
their  profession.  His  influence,  already  dominant,  promises  to 
be  enduring."  (2) 

(1)  See  Howard  Graduates  Magazine,  Vol.  XV   (Dec.  1906). 

(2)  Langdell's  books  and  legal  articles  were  as  follows: 

His  Select  Cases  on  Contracts  appeared  in  instalments  during  1870-71, 
the  completed  volume  being  published  in  October  1871,  with  a  summary 
of  thirteen  pages.  In  May,  1872,  he  published  his  Select  Cases  on  Sales 
of  Personal  Property  with  a  summary  of  twenty  pages.  In  1875,  he  pub- 
lished his  Cases  on  Equity  Pleading  (which  had  been  printed  in  instal- 
ments since  1873),  with  a  summary  of  one  hundred  and  twenty  pages. 
In  1877,  this  summary  was  published  separately.  In  1879,  his  second 
edition  of  Cases  on  Contracts  appeared  with  a  much  amplified  summary. 
In  1880,  this  summary  appeared  as  a  separate  book  (second  edition  in 
1883).  In  1879,  he  published  the  first  three  parts  of  Cases  on  Equity 
Jurisdiction;  and  in  1883,  two  further  parts.  No  summary  was  ever 
made  of  this  incomplete  collection,  and  he  abandoned  its  use,  in  1890. 
In  1905,  the  Harvard  Law  Review  obtained  his  consent  to  publish  in  a 
volume  various  essays  which  had  appeared  in  that  magazine,  entitled  A 
Brief  Survey  of  Equity  Jurisdiction. 

In  addition  to  the  above,  Langdell  wrote  for  the  Harvard  Law  Review 
the  following  articles : 

Equitable  Conversion,  Vol.  XVIII,  p.  245;  Vol.  XIX  pp.  79,  233,  321 
(1905-6).  Discovery  under  the  Judicature  Acts  of  1873-1875,  Vol.  XI, 
pp.  137;  205,  Vol.  XII,  p.  151  (1897-98).  Mutual  Promises  as  a  Con- 
sideration for  Each  Other,  Vol.  XIV,  p.  496  (1901).  Patent  Rights  and 
Copyrights,  Vol.  XII,  p.  553  (1899).  The  Status  of  Our  New  Territoories, 
Vol.  XII,  p.  365  (1899).  The  Northern  Securities  Cases  and  the  Sher- 
man Anti-Trust  Act,  Vol.  XVI,  p.  539  (1903).  The  Northern  Securities 
Case  Under  A  New  Aspact,  Vol.  XVII,  p.  41  (1903).  Dominant  Opinions 
in  England  During  the  Nineteenth  Century  in  Relation  to  Legislation  as 
Illustrated  by  English  Legislation  or  the  absence  of  it  During  that  period, 
Vol.  XIX,  p.  151  (1906). 


CHAPTER  XLYI. 
THE  AMES  PERIOD. 

The  first  year  under  Dean  Ames  witnessed  a  sudden  increase 
in  students,  from  413  to  475,  this  year  (1895-96)  being  the  last 
before  the  new  admission  requirements  were  to  go  into  effect. 
The  Professors  were  forced  to  make  many  shifts  in  the 
programme  of  courses,  owing  to  Langdell's  being  relieved  of  one- 
third  of  his  dutes,  and  the  ill-health  of  Williston.  Langdell's 
course  on  Suretyship  and  Mortgages  was  taken  by  Ames,  who 
also  took  Williston's  course  on  Bills  and  Notes,  and  First  Year 
Contracts  until  February,  when  it  was  assumed  by  George  Rublee 
(LL.B.  1895),  who  was  appointed  as  Instructor  March  23,  1896. 
Beale  took  First  Year  Civil  Procedure  and  also  gave  a  course  on 
International  Law,  and  other  minor  changes  were  made.  Ernest 
L.  Conant  was  again  appointed  Instructor  in  Law,  Sept.  30,  1895 ; 
and  Francis  C.  Huntingdon  (L.L.B.  1891)  was  appointed 
Lecturer  on  the  New  York  Code,  March  23,  1896. 

The  year  1896-97  was  the  first  year  of  the  new  requirements 
for  admission.  Notwithstanding  the  fact  that,  as  stated  by  Dean 
Ames  in  his  Report  for  1894-95,  "when  the  prospective  policy  of 
restriction  was  adopted  in  1893,  it  was  believed  that  in  the  first 
year  of  its  operation  the  number  of  students  would  fall  below 
400" — the  number  actually  rose  to  490 — the  largest  ever  in  the 
School.  ( I ) 

(i)  In  the  spring  and  fall  of  1896  and  1897,  the  Law  Faculty  passed 
several  votes,  with  the  intent  to  raise  still  higher  the  standard  of  the 
School  and  to  add  to  the  significance  of  the  degree — the  first  vote  (Febru- 
ary 20,  1896)  increasing  the  passing  mark  on  admission  examinations  from 
50  per  cent,  to  60  per  cent;  the  next  vote  (May  13,  1897)  :  "that  all  candi- 
dates for  the  degree  entering  the  School  after  May  I,  1897,  who  do  not  take 
advanced  standing  be  required  to  spend  three  years  in  resident  study,  and 
that  the  privilege  of  being  absent  from  the  School  during  the  second  or 
third  year  be  granted  only  in  rare  instances  and  upon  cogent  reasons  pre- 
sented to  the  Faculty." 

Another  vote  was  passed,  May  17,  1897,  that,  after  June,  1898,  third  year 
students  who  were  candidates  for  the  ordinary  degree,  as  well  as  those  who 
were  candidates  for  the  honor  degree,  should  be  required  to  take  ten  hours 
a  week,  and  that  no  one  should  be  admitted  to  the  third  year  if  there  was 
more  than  one  condition  against  him  in  first  or  second  year  work;  and 
still  another  on  Oct.  8,  1897  "that  no  student  be  permitted  to  continue  in 
the  School  who  does  not  pass  annually  examinations  in  work  representing 


462  HARVARD  LAW  SCHOOL. 

Owing  to  the  continued  illness  of  Williston,  Ames  took  charge 
of  Contracts  and  Bills  and  Notes ;  and  Beale  took  Pleading. 

Frank  Beverly  Williams  (L.L.B.  1895,  appointed  May  n, 
1896)  served  as  Instructor  in  Partnership;  and  Francis  C.  Hun- 
tingdon (LL.B.  1891,  appointed  May  n,  1896)  served  as 
Lecturer  in  Pleading  and  Practice  under  the  New  York  Code  of 
Civil  Procedure.  The  course  on  Suretyship  was  dropped. 

It  is  to  be  noted  that  the  Faculties  of  the  various  departments 
of  the  University,  had  for  some  years  been  growing  more  and 
more  self-governing  and  independent.  The  Corporation  accord- 
ingly passed  the  following  vote  which  was  considered  at  a 
meeting  of  the  Law  Faculty,  May  17,  1897 : 

Resolved  that  in  the  opinion  of  this  Board,  the  Faculties  should 
communicate  to  the  Governing  Boards,  notice  of  any  very 
material  changes  proposed  in  the  constitution  of  the  several 
Schools,  or  in  the  conditions  of  admission,  before  taking  final 
action. 

For  some  years,  the  Courts  of  the  student  law  clubs  had  been 
detracting  from  the  interest  shown  in  the  Moot  Courts ;  and  it 
was  now  determined  by  the  Faculty  to  discontinue  them,  the  last 
Moot  Court  being  held  March  10,  1897. 

In  1897-98,  Dean  Ames  said  in  his  Report:  "The  continued 
growth  of  the  School,  notwithstanding  its  change  into  a  graduate 
department  of  the  University,  has  upset  all  our  calculations. 
.  .  .  The  unprecedented  number  of  entries  this  year  makes 
it  probable  that  the  School  will  not  have  fewer  than  500  students 
for  some  years  to  come ;  for  it  seems  impracticable  effectually  to 
check  the  resort  to  the  School  by  further  restrictive  measures." 
(i) 


at  least  six  hours  a  week  through  the  year" ;  and  a  further  vote,  Nov.  17,, 
1897,  raising  the  pass  mark  in  examinations  from  50  per  cent,  to  55  per 
cent. 

(i)  In  the  Harvard  Graduates  Magazine,  Vol.  VI  (Dec.  1897),  Dean 
Ames  said : 

"When  it  was  decided  to  admit  as  candidates  for  a  degree,  after  the 
year  1895-96,  only  college  graduates  or  persons  qualified  to  enter  the 
Senior  Class  of  Harvard  College,  it  was  with  the  general  expectation  that 
the  change  would  involve  a  serious  diminution  in  the  attendance  at  the 
School.  Several  members  of  the  Faculty  believed  that  the  loss  would  be 
but  temporary,  as  it  had  been  twenty  years  before,  when  the  course  was 
extended  from  two  years  to  three.  But  no  one  was  so  rash  as  to  suggest 
that  the  succession  of  annual  gains  in  members  which  had  continued  un- 
broken since  1883  would  be  maintained  during  the  two  years  after  so  radi- 
cal a  departure  as  the  conversion  of  the  School  into  a  graduate  depart- 


o 
o 

.—I 

ft 


ft 

a 

o 
o 


A 

•*-» 

M 

O 


at 

w 

rt 


AMES  PERIOD.  463 

Two  things  seemed  imperative ;  an  addition  to  the  teaching  staff 
so  that  in  all  the  subjects  of  the  first  year  and  in  the  large 
electives  of  the  second  year,  the  classes  might  be  divided  into 
sections ;  and  a  still  further  enlargement  of  Austin  Hall  both  for 
reading  room  and  lecture  room. 

In  this  academic  year,  Assistant  Professor  Beale  assumed  the 
duties  of  Bussey  Professor,  having  been  appointed  to  that  position 
April  14,  1897,  and  Frank  B.  Williams  succeeded  him  as  Assis- 
tant Professor.  Ezra  R.  Thayer,  (LL.B.  1891,  appointed  May 
24,  1897)  served  as  Instructor  on  Peculiarities  of  Massachusetts 
Law  and  Practice;  and  Charles  B.  Barnes  (LL.B.  1893,  appoint- 
ed Sept.  28,  1897),  as  Instructor  on  Suretyship;  a  course  on 
Roman  Law  by  Assistant  Professor  Williams  was  added  and  he 
also  gave  Bills  and  Notes.  Owing  to  the  continued  illness  of 
Williston,  Ames  had  charge  of  Contracts,  and  Beale,  of  Pleading. 

February  24,  1898,  the  Faculty  adopted  a  resolution  that,  "it  is 
for  the  true  interests  of  the  law  students  to  complete  their  Law 
School  course  before  attempting  to  pass  the  examinations  for 
admission  to  practice."  This  vote  illustrated  how  far  the  School 
has  gone  beyond  the  old  conditions  which  prevailed  from  1830  to 
1870,  when  it  was  a  very  usual  practice  for  men  to  enter  the 
School  for  the  first  time  after  being  admitted  to  the  Bar,  such 
admission  being  considered  equivalent  to  a  certain  amount  of 
residence  in  the  School,  in  the  award  of  the  degree  of  LL.B. 

On  April  i,  1898,  the  Faculty  passed  a  vote  to  cover  a  gap  in 
the  regulations  as  to  the  rights  of  graduates  or  students  of  other 
Law  Schools  desiring  to  enter. 

Voted:  that  persons  who  have  spent  an  academic  year  of  not 
less  than  30  weeks  in  regular  attendance  at  another  law  school 
and  have  passed  creditable  examinations  there  in  the  work  of  the 
year,  if  otherwise  qualified  to  enter  the  School  as  regular 
students,  may  register  as  special  students,  and  take  both  first 
and  second  year  examinations,  at  the  end  of  their  first  year's 
residence  in  this  School. 

The  year  1898  was  memorable  in  the  Nation  for  the  declaration 
of  war  with  Spain.  Many  of  the  students  in  the  Law  School, 


ment  of  the  University.  But  the  unexpected  happened.  There  was  a  fall- 
ing off  in  1896-97,  it  is  true,  in  the  number  of  new  entries,  but  the  total 
number  of  students  exceeded  by  ten  that  of  the  preceding  year :  in  1897-98, 
the  new  entries  alone  exceeded  those  in  any  one  year  in  the  School's  his- 
tory, and  the  advance  of  65  in  the  total  registration  had  been  exceeded  only 
once." 


464  HARVARD  LAW  SCHOOL. 

enlisted  in  the  military  and  naval  services  of  the  United  States ; 
and  to  meet  this  condition  of  affairs,  votes  were  passed  by  the 
Law  Faculty  on  May  12,  i898.(i) 

The  financial  prosperity  of  the  School  may  be  judged,  from  the 
following  vote  of  the  Corporation,  May  9,  1898,  constituting  a 
separate  Library  Fund : 

Voted:  on  the  advice  of  the  Law  Faculty,  to  use  the  sum  of 
$100,000,  to  be  taken  from  the  Law  School  balance  as  of  July 
31,  1898,  for  the  establishment  of  a  Law  School  Library  Fund, 
the  income  of  which  shall  until  further  order  of  the  Corporation 
be  applied  towards  the  administration  expenses  of  the  Law 
Library. 

The  Law  School  balance  on  August  I,  1897,  had  been  $140,- 
486.93,  and  on  July  31,  1898,  after  deduction  of  this  $100,000,  was 
$70,111.27. 

Joseph  Doddridge  Brannan  was  elected  Professor  on  June  15, 
1898,  Mr.  Brannan  was  born  in  Circleville,  O.,  January  6,  1848 ; 
graduated  from  Harvard  in  1869,  and  attended  the  Law  School 
1871-72.  He  taught  German  in  the  College  1871-72,  and  Roman 
Law  in  the  College  1872-73.  He  practiced  law  in  Cincinnati, 
where  at  the  time  of  his  appointment  he  was  a  successful  Profes- 
sor in  the  Law  School  of  the  University  of  Cincinnati  (founded 
in  1896).  On  May  23,  1898,  the  Corporation  after  many  years  of 
difficult  search  for  a  man  qualified  to  meet  the  desires  of  the 
founder,  filled  the  Bemis  Professorship  by  the  appointment  of 
Edward  Henry  Strobel.(2)  Mr.  Strobel  was  born  in  Charleston, 


(1)  Voted:    That  the  Dean  be  authorized  to  allow  students  of  the  first 
or  second  year  who  lose  the  coming  June  examinations,  because  of  enter- 
ing the  military  or  naval  service,  to  take  those  examinations  in  a  subse- 
quent year. 

Voted :  That  third  year  students  who  have  already  entered  the  military 
or  naval  service  and  are  thereby  prevented  from  attending  the  coming 
June  examinations  and  who  have  complete  records  for  two  full  years,  be 
recommended  for  the  degree,  and  for  that  form  of  the  degree  to  which 
they  would  severally  be  entitled  on  the  records  of  the  first  two  years. 

It  was  also  voted  that  the  third  year  men,  having  conditions  might  be  rec" 
ommended  for  a  degree  on  their  first  and  second  year  work,  whenever 
they  should  make  up  such  conditions. 

(2)  On  September  4,  1892,  Miss  Bemis,  the  annuitant  to  whom  the  in- 
come of  the   Bemis   Professorship   fund  had  been   paid  since    1878,  died. 
"The  fund,"  said  President  Eliot,  "amounts  to  $50,845.23  and  will  not  yield 
therefore  much  more  than  half  of  the  salary  paid  to  senior  Professors  in 
the  Law  School.     It  was  the  wish  of  Mr.  George  Bemis,  the  founder,  that 
the  incumbent  of  his  Professorship  should  be  a  jurist  who  had  been  in  pub- 
lic life  or  the  diplomatic  service,  or  who,  at  least,  had  lived  abroad  and  so 
had  had  opportunity  to  view  his  country  from  without.     He  also  wished 


AMES  PERIOD.  465 

South  Carolina,  December  7,  1855.  A  Harvard  graduate  of  1877, 
he  attended  the  Law  School  in  1877-78,  1879-80,  and  1882,  re- 
ceiving his  degree  of  LL.B.  in  the  latter  year.  He  was  admitted 
to  the  Bar  in  New  York.  During  the  presidential  campaign  of 
1884,  a  document  which  he  prepared  incisively  disclosing  the 
weak  points  in  Mr.  Elaine's  diplomatic  record  brought  him  such 
reputation,  that  after  President  Cleveland  took  office  he  soon  ap- 
pointed Strobel  Secretary  of  Legation  at  Madrid.  At  this  post, 
owing  to  the  illness  of  the  Minister,  Strobel  was  Charge  d'  affaires 
for  a  third  of  his  five  years'  residence.  He  was  retained  in  his 
position  by  Mr.  Elaine  when  Secretary  of  State ;  and  in  1888,  he 
was  sent  to  Tangier  to  settle  matters  at  issue  with  the  Moroccan 
Government.  He  resigned  as  Secretary  of  Legation  in  1890.  He 
was  appointed  third  Assistant  Secretary  of  State  under  Mr. 
Gresham  in  President  Cleveland's  second  administration.  In 
April,  1894,  he  was  appointed  Minister  to  Ecuador,  and  December, 
1894,  was  promoted  to  be  Minister  to  Chili,  at  a  critical  time  when 
relations  were  strained  between  the  countries.  This  office  he  re- 
signed in  February,  1897.  In  July,  1897,  he  was  named  by  the 
French  and  Chilean  governments  to  arbitrate  the  claim  of  a 
French  citizen.(i) 

The  year  1898-99  was  chiefly  noticeable  for  the  large  increase 
in  the  teaching  force,  due  partly  to  the  earnest  recommendation 
to  that  effect  in  the  report  of  the  Visiting  Committee  to  the  Over- 
seers, the  preceding  year.  Besides  the  two  new  Professors  before 
mentioned,  the  following  Lecturers  were  appointed — Arthur  C. 
Rounds,  (LL.B.  1890,  appointed  Dec.  12,  1898),  on  Pleading  and 
Practice  under  the  New  York  Code;  James  J.  Storrow  (LL.B. 
1888,  appointed  Dec.  27,  1898),  on  Patents;  Henry  W.  Swift 
(LL.B.  1874,  appointed  June  28,  1898),  on  Sales.  The  following 
Instructors  were  appointed:  Robert  G.  Dodge  (LL.B.  1897,  ap- 
pointed December  12,  1898),  who  conducted  Second  Year  Prop- 
erty ;  Jens  Iverson  Westengard  (LL.B.  1898,  appointed  March  28, 
1898),  who  gave  First  Year  Pleading  and  shared  First  Year  Crim- 
inal Law  with  Professor  Beale.  Professor  Williston  returned  and 
gave  a  new  course  on  Bankruptcy.  Beale  resumed  his  course  on 
Damages  (omitted  the  preceding  year).  The  new  Professor, 

the  incumbent  to  be  not  merely  a  professor  of  the  science,  but  a  practical 
co-operator  in  the  work  of  advancing  knowledge  and  good-will  among  na- 
tions and  governments.  It  will  obviously  be  difficult  to  fill  this  chair." 

(i)  Strobel  died  Jan.  15,  1908.  See  excellent  sketch  of  his  life  by 
Lindsay  Swift  in  Harvard  Graduates  Magazines,  Vol.  XVI  (March,  1908). 

30 


466  HARVARD  LAW  SCHOOL. 

Brannan,  began  his  duties  and  gave  courses  on  Second  and  Third 
Year  Bills  and  Notes  and  Third  Year  Partnership.  The  new 
Bemis  Professor,  Strobel,  gave  a  Third  Year  course  on  "Inter- 
national Law  as  administered  by  the  Courts."  Assistant  Profes- 
sor Williams,  owing  to  ill  health,  was  compelled  to  resign,  Septem- 
ber i,  1898,  much  to  the  regret  of  his  associates,  the  students  and 
the  Corporation ;  and  his  course  on  Roman  Law  was  omitted. 

A  brilliant  series  of  lectures  were  given  during  the  year  by  the 
noted  English  jurist,  Professor  Albert  Venn  Dicey  on  Changes 
in  the  English  Law  during  the  Nineteenth  Century.  He  was 
appointed  by  the  Corporation  as  a  Lecturer  on  October  10, 
1898,  being  the  second  foreigner  to  receive  this  distinction, — 
the  first  being  Count  Gurowski,  who  delivered  lectures  on  Civil 
Law  in  1850-51. 

Two  important  changes  in  methods  of  study  were  introduced, 
both  in  pursuance  of  the  recommendations  of  the  Visiting  Com- 
mittee of  the  preceding  year. 

The  first  was  the  division  of  the  classes  in  Pleading,  First 
Year  Property,  Bills  and  Notes,  and  Evidence,  into  two  sections, 
and  Criminal  Law  into  four.  These  classes  had  become  altogether 
too  unwieldly  in  number  and  impracticable  to  teach  satisfactorily 
by  the  Langdell  methods.  They  numbered  respectively  226,  227, 
115,  186,  and  229. (i) 

The  second  was  the  continuance  of  Bail  Courts  which  were 
started  in  1897-98  to  give  practice  in  pleading. 

In  1899-1900.  the  School  again  greatly  increased  in  size,  having 
49  more  students  than  in  1898-99 — a  total  of  613 ;  and  Dean 
Ames  said :  "the  increase  in  the  new  entries  makes  it  improbable 
that  the  number  of  students  will  fall  below  600  for  some  years 
to  come.  .  .  .  It  is  an  interesting  fact  that  the  number  of 
graduates  in  the  School,  this  year,  from  Yale,  Dartmouth  and 
Brown,  114,  exceeds  by  one  the  total  number  of  students  in  the 
School  at  the  corresponding  time  of  the  year  1872-73." 

President  Eliot  said  in  his  Annual  Report  (2)  : 

The  serious  questions  about  the  Law  School  arise  from  its 


(1)  The  increase  in  the  size  of  the  School  the  next  year,   1899-1900 
necessitated  further  division  of  classes  into  sections — First  Year  Property 
(having  244  students),  Second     Year  Property  (188),  Torts  (241),  Con- 
tracts (238),  Bills  and  Notes  (65),  and  Evidence  (184),  were  divided  into 
two  sections;  Pleading  (234)  into  three  sections;  and  Criminal  Law  (231) 
into  four  sections. 

(2)  See  Annual  Report  for  1898-99,  referring  to  the  fall  of  1899. 


AMES  PERIOD.  467 

prosperity  and  success.  It  has  more  than  four  times  the  number 
of  students  it  had  fifteen  years  ago;  and  its  Library  is  growing, 
and  threatens  to  continue  to  grow,  at  the  rate  of  more  than  6,000 
volumes  a  year.  An  immediate  enlargement  of  the  building  is 
imperatively  demanded ;  and  in  planning  that  enlargement  it  seems 
to  be  necessary  to  look  forward  to  a  Law  Library  of  more  than 
100,000  volumes  within  ten  years.  Financially,  the  School  is  able 
to  provide  both  the  building  and  the  books ;  but  it  would  be  really 
formidable  to  imagine  the  future  size  and  costliness  of  this  depart- 
ment of  the  University,  if  it  were  reasonable  to  suppose  that  its 
recent  rate  of  increase  would  be  maintained. 

There  were  fewer  lecturers  appointed  for  this  academic  year. 
Ezra  R.  Thayer,  (appointed  May  15,  1899)  Save  tne  course  on 
Massachusetts  Law  and  Practice;  Harry  A.  Bigelow,  (LL.B. 
1899)  was  appointed  Instructor  in  Criminal  Law,  May  15,  1899; 
Jens  Iverson  Westengard,  then  Instructor  in  Criminal  Law,  was 
appointed  Assistant  Professor,  March  13,  1899.  Charles  F.  D. 
Belden  (LL.B.  1898)  was  appointed  Secretary  of  the  Law 
Faculty  Sept.  i,  1899,  (confirmed  by  the  Corporation  Oct.  2. 
1899). 

The  following  changes  of  courses  were  made  by  the  Profes- 
sors: Williston,  after  an  interval  of  three  years  resumed  his 
course  on  First  Year  Contracts ;  Ames  gave  Second  Year  Sales ; 
Westengard,  Second  Year  Property,  as  well  as  First  Year  Plead- 
ing; Brannan  gave  a  Second  Year  course  in  Bankruptcy;  and 
Williston,  a  Third  Year  course  on  the  same  subject. 

A  matter  which  had  come  up  early  in  the  Langdell  regime  was 
again  acted  upon  adversely  by  the  Corporation,  at  the  beginning 
of  the  academic  year — the  admission  of  women  to  the  Law 
School  course.  In  June,  1899,  a  woman  petitioned  for  admission 
as  a  regular  student ;  but  the  Law  Faculty  felt  that  so  radical  a 
change  would  require,  practically  as  well  as  theoretically,  the 
sanction  of  the  Corporation  and  Overseers.  It  did,  however, 
adopt,  June  24,  1899,  a  vote  which  gave  a  graduate  student  at 
Radcliffe  College  the  same  privileges  as  to  law  studies  that  she 
already  enjoyed  in  regard  to  subjects  taught  in  the  Graduate 
School.  ( i ) 

(i)  "Voted:  That  the  petition  of  Frances  A.  Keay,  a  graduate  of  Bryn 
Mawr  College,  to  be  admitted  as  a  regular  student  of  the  Law  School  in 
October,  1899,  be  not  granted ;  but  that  the  Dean  be  authorized  to  inform 
her  that  if  the  Governing  Boards  of  Radcliffe  College  admit  her  as  a  grad- 
uate student  with  a  view  to  her  attending  this  School,  she  may  take  the 
courses  and  examinations,  but,  not  being  a  registered  member  of  the 
School,  will  not  receive  the  Harvard  degree  of  LL.B." 


468  HARVARD  LAW  SCHOOL. 

October  16,  1899,  however,  the  Corporation  passed  the  follow- 
ing vote,  and  sent  it  to  the  Overseers,  who  took  no  action : 

Voted:  That  the  President  and  Fellows  are  not  prepared  to 
admit  women  to  the  instruction  of  the  Law  School  on  the  plan 
suggested  in  the  vote  of  the  Faculty  of  the  Law  School  of  June 
24,  1899,  and  the  vote  of  the  Council  of  Radcliffe  College  of 
June  26,  1899. 

November  13,  1899,  the  Law  Faculty  voted  not  to  admit 
thereafter  as  candidates  for  a  degree,  "persons  qualified  to  enter 
the  Senior  Class  of  Harvard  College";  and,  April  9,  1900,  they 
restricted  further  the  admission  of  special  students. 

At  the  end  of  this  academic  year,  1899-1900,  a  question,  which 
for  some  years  had  been  troubling  the  Law  Faculty,  was  settled — 
the  admission  of  Harvard  Seniors  to  the  School.  (2) 


(i)  "Voted:  That  the  paragraphs  permitting  special  students  to  entitle 
themselves  to  enrollment  as  regular  students,  either  by  becoming  qualified 
to  enter  with  the  Senior  Class  of  Harvard  College,  or  by  receiving  a  de- 
gree from  a  college  in  the  list  of  selected  colleges  be  omitted  from  the  1900- 
01  Law  School  Circular. 

Persons  who  have  never  received  a  degree,  but  who  have  attained  the 
age  of  21  years,  will  in  rare  instances  be  admitted  as  special  students  by 
special  vote  of  the  Faculty  and  upon  passing  in  September  satisfactory 
examinations  in  Blackstone,  Latin  and  French." 

A  further  raise  of  the  standard  of  the  School  may  be  noted  in  the  vote 
of  the  Law  Faculty  Nov.  12,  1900,  providing  that  students  must  pass  in 
four  subjects  at  the  end  of  the  first  year  or  in  four  full  courses  or  their 
equivalents  at  the  end  of  the  second  and  third  years  in  order  to  contin- 
ue in  the  School  or  to  rejoin  it;  except  that  a  person  seeking  to  rejoin 
might  do  so  upon  obtaining  a  general  average  at  some  regular  examination 
on  the  entire  work  of  the  year  in  which  he  failed,  at  least  5  per  cent,  higher 
than  the  usual  passing  mark. 

•(2)  In  his  Report  for  1896-97,  Dean  Ames  said,  referring  to  the  fall  of 
1897: 

"These  Harvard  Seniors  are  fewer  by  eight  than  in  the  year  1896-97. 
This  is  a  welcome  decrease.  Any  discussion  of  the  general  principle  of  per- 
mitting a  college  student  to  complete  the  four  years'  course  in  three  years 
would  be  out  of  place  in  this  report.  But  attention  may  fairly  be  called 
to  the  practice  of  granting  leave  of  absence,  during  their  senior  year,  to 
students  who  have  completed  sixteen  and  one-half  of  the  eighteen 
courses  required  for  the  degree  of  A.B. ;  for  under  this  practice  Seniors 
on  furlough  registered  in  the  Law  School  are  obliged  to  divide  their  time 
between  their  College  and  their  Law  School  work.  As  might  be  anticipated, 
these  Seniors  have  not  made  a  good  record  in  the  Law  School.  ...  It 
would  be  for  the  true  interest  of  the  men,  as  well  as  for  the  good  of  the 
Law  School,  if  the  practice  of  granting  furloughs  should  be  discontinued 
except  in  the  case  of  Seniors  who  have  completed  their  eighteen  courses." 

In  1897-98,  the  Dean  said : 

"The  registration  of  30  Seniors  in  the  Law  School  indicates  how  rapidly 
the  conviction  is  spreading  that  a  young  man  should  be  able  in  some  mode 
to  complete  the  College  course  and  the  Law  School  course  in  six  years. 
The  reasonableness  of  this  conviction,  so  long  as  the  average  age  of  ad- 
mission to  the  College  stands  at  19,  is  obvious.  But  neither  of  the  two 


AMES  PERIOD.  469 

On  June  27,  1900,  the  Law  Faculty  voted,  "that  the  Dean  be 
authorized  to  notify  Harvard  College  students  that  they  cannot 
count  upon  the  continuance  after  1899-1900  of  the  present  prac- 
tice which  permits  Seniors  on  leave  of  absence  to  combine  the 
first  year  work  with  arrears  of  College  work."  This  vote,  as 
the  Dean  said,  represented  the  opinion  of  the  Law  Faculty  that 
a  law  student  should  give  the  whole  of  his  study  hours  to  his 
law  work.  Experience  had  shown  that  a  majority  of  those  who 
combined  Law  and  College  studies  made  poor  records  in  both 
departments. 

The  chief  event  of  the  year  1900-01  was  the  resignation  of 
Langdell  as  Dane  Professor,  October  9,  1900,  and  his  appoint- 
ment by  the  Corporation  as  Dane  Professor  of  Law  Emeritus. 


methods  of  accomplishing  the  desired  result  that  have  been  tried  thus  far, 
has  stood  the  test  of  experience. 

For  some  years  prior  to  1893  it  was  the  common  practice  of  College 
students  who  wished,  as  the  phrase  went,  to  save  a  year,  to  attend  during 
their  Senior  and  Junior  years,  the  first-year  courses  of  the  Law  School  and 
to  take,  in  the  September  following  their  graduation,  the  examinations  for 
advanced  standing  in  the  Law  School.  The  Law  School  record  of  College 
students,  who  in  this  manner  anticipated  the  first  year  of  their  law  work, 
was  so  poor  as  to  convince  the  Law  Faculty  that  it  was  for  the  interest  of 
the  student  and  of  the  School  to  remove  the  opportunity  for  this  anticipa- 
tion. Accordingly  in  1893  the  privilege  of  taking  advanced  standing  in  the 
School  was  abolished  except  for  persons  who  had  been  in  regular  attend- 
ance for  an  academic  year  at  some  other  law  school. 

In  consequence  of  this  change  a  new  mode  of  saving  a  year  was  intro- 
duced. The  Faculty  of  Arts  and  Sciences,  yielding  to  the  pressure  of  their 
students,  began  the  practice  of  granting  leave  of  absence  during  the  sen- 
ior year  to  those  who  had  crowded  at  least  five-eighths  of  the  work  of  that 
year  into  the  preceding  three  years." 

This  practice,  the  Dean  pointed  out,  had  proved  a  failure : 

"If  the  leave  of  absence  should  be  granted  to  all  who  had  fully  completed 
three  years'  work  in  college  and  who  desired  to  enter  one  of  the  profes- 
sional schools  of  the  University,  and  if  the  Seniors  on  furlough  should  be 
required  to  pass  satisfactory  examinations  in  all  of  the  first-year  work  of 
the  professional  school  in  which  they  registered,  as  a  condition  of  receiving 
the  degree  of  A.B.  with  their  College  class,  the  dignity  of  that  degree  would 
certainly  not  be  lowered,  and  the  desired  object  of  saving  a  year  would  be 
accomplished.  The  Law  Faculty  would  welcome  the  adoption  of  this  plan." 

In  1898-99,  the  Dean  said: 

"The  law  examinations  of  last  June  demonstrated  once  more  what  had 
been  proved  in  each  of  the  five  years  preceding,  namely,  that  the  law  work 
of  Harvard  Seniors,  who  had  not  completed  their  College  work,  was  infer- 
ior not  only  to  that  of  Harvard  graduates,  but  also  to  that  of  the  School  at 
large.  Fortunately  this  deplorable  experience  will  not  be  repeated  after 
June,  1900,  for  by  a  recent  vote  of  the  Law  Faculty  the  rule  admitting  as 
regular  students  'persons  qualified  to  enter  the  Senior  Class  of  Harvard 
College'  was  abolished." 

See  vote  of  Law  Faculty,  Nov.  13,  1899,  that: 

"Persons  qualified  to  enter  the  Senior  Class  of  Harvard  College  be  no 
longer  admitted  to  the  Law  School  without  examination  as  candidates  for 
the  degree  of  Bachelor  of  Laws." 


470  HARVARD  LAW  SCHOOL. 

The  Corporation  further  voted  that  "they  desired  to  put  on 
record  their  appreciation  of  his  unique  services :" 

He  has  been  Professor  of  Law  for  thirty  years,  a  term  of  ser- 
vice much  longer  than  the  Law  School  enjoyed  from  any  of  his 
predecessors ;  he  was  the  first  Dean  of  the  Law  School,  and  was 
Dean  for  twenty-five  years  during  a  period  of  fundamental  recon- 
struction ;  he  originated  a  method  of  teaching  law  which  has 
proved  to  be  a  radical  improvement  of  great  value  and  wide 
application ;  finally  he  has  taught  law  by  voice  and  pen  with 
profound  learning,  great  accuracy  and  clearness  of  statement, 
and  complete  devotion  to  the  work  of  teaching.  The  Corporation 
recognize  Professor  Langdell's  contributions  to  the  welfare  of 
the  Law  School  and  to  the  improvement  of  legal  education  as 
sound  in  theory  and  effective  in  practice,  and  as  likely  to  be  of 
lasting  influence  for  good,  not  only  in  Harvard  University,  but  in 
all  Universities  which  prepare  young  men  for  the  learned  pro- 
fessions. 

And  they  further  recognized  Langdell's  services  by  arranging 
for  him  an  exceptional  retiring  allowance,  and  inviting  him  "to 
continue  to  avail  himself  of  all  the  facilities  in  Austin  Hall  which, 
as  Professor  and  Dean,  he  has  of  late  years  enjoyed." 

To  his  remarkable  career  of  success,  Dean  Ames  in  his  Annual 
Report  for  1899-1900  paid  the  following  tribute 

After  a  service  in  the  cause  of  legal  education  unrivalled  in  the 
past,  and  not  likely  to  be  matched  in  the  future,  Professor  Lang- 
dell  retires  from  the  Law  Faculty.  When  he  came  to  Cambridge 
thirty  years  ago,  he  entered  a  faculty  of  three  Professors  giving 
ten  lectures  a  week  in  a  School  of  115  students  and  conferring  the 
degree  after  one  year  of  residence  upon  persons  "admitted  to  the 
School  without  any  evidence  of  academic  requirements  and  sent 
from  it  without  any  evidence  of  legal  requirements."  He  leaves  a 
Faculty  of  ten  Professors,  seven  of  them  his  former  pupils,  giving 
more  than  fifty  lectures  a  week  to  over  600  students  and  bestow- 
ing the  degree  upon  college  graduates  after  three  years  of  resi- 
dence and  the  passing  of  three  annual  examinations.  In  1870,  the 
Treasurer's  books  disclosed  a  deficit.  In  1900,  the  surplus  is  large 
enough  to  build  an  extension  of  Austin  Hall  greater  than  the 
original  building  and  is  about  to  be  so  applied.  He  found  here  the 
wreck  of  a  library.  He  leaves  a  library  without  a  peer  among  the 
law  libraries  of  the  world. 

Of  these  changes  Professor  Langdell  was  not  magna  but 
maxima  pars.  The  most  fruitful  change  of  all,  however,  has  been 
the  revolution  effected  by  him  in  the  matter  of  teaching  and 
studying  law,  a  revolution  that  has  spread  and  is  spreading  so 
rapidly  to  other  schools  that  in  a  few  years  his  views  may  be 


AMES  PERIOD.  471 

expected  to  dominate  legal    education    throughout    the    United 
States. 

Professor  Langdell  has  richly  earned  the  right  of  dignified  con- 
templative repose  with  the  satisfaction  of  watching  the  progress 
of  this  School  along  the  lines  marked  out  by  himself,  and  the 
growing  influence  of  his  ideas  in  other  schools.  It  is,  however, 
a  great  pleasure  to  his  colleagues  to  know  that  he  is  to  retain  his 
room  in  Austin  Hall  and  that  he  will  add  to  his  services  to  the 
School  and  to  the  legal  profession  by  devoting  to  writing  the 
hours  he  formerly  gave  to  teaching. 

Several  new  teachers  served  during  the  year.  Bruce  Wyman 
(LL.B.  1900,  appointed  Lecturer,  April  30,  1900)  gave  a  wholly 
new  half  course  on  Administrative  Law.  William  R.  Peabody 
(LL.B.  1898,  appointed  Instructor,  May  14,  1900),  assisted  Beale 
in  Criminal  Law.  Robert  Gray  Dodge  (LL.B.  1897,  appointed 
Instructor,  May  14,  1900),  assisted  Williston  in  Contracts. 
Arthur  C.  Rounds  (LL.B.  1890,  appointed  Lecturer,  May  14, 
1900)  gave  the  course  on  New  York  Code  Practice.  Strobel  gave 
a  new  half  course  on  the  Civil  Law  of  Spain  and  the  Spanish 
Colonies;  and  after  a  lapse  of  many  years,  a  half  course  on 
Admiralty  was  given  by  Ames;  Williston  resumed  Sales;  and 
Brannan  gave  Damages.  In  consequence  of  Langdell's  retire- 
ment, Second  Year  Equity  was  omitted ;  and  Third  Year  Equity 
was  given  by  Ames. 

Owing  to  the  size  of  the  School  (655)  and  of  the  separate 
classes,  all  the  first  and  second  year  courses  were  now  divided 
into  sections. 

The  policy  of  the  School  as  to  instruction  was  thus  stated  by 
President  Eliot  in  his  Annual  Report. 

t 

The  Faculty  of  the  Law  School  is  in  favor  of  limiting  the 
instruction  given  in  that  School  to  law  determined  by  courts. 
They  therefore  would  not  admit  to  the  School  such  studies  as 
institutional  history,  government,  political  science,  and  adminis- 
tration national,  state,  municipal,  or  colonial.  The  demand  for 
instruction  in  these  subjects  at  universities  is  manifestly  increas- 
ing ;  but  since  the  Law  School  is  indisposed  to  take  them  up,  they 
will  have  to  be  developed  in  the  Graduate  School. 

February,  1901,  the  School  took  part  in  the  celebration, 
general  throughout  the  country,  to  commemorate  the  looth  anni- 
versary of  the  appointment  of  John  Marshall  to  be  Chief  Justice 
of  the  United  States.  Lectures  were  suspended  for  this  day,  and 
in  the  afternoon  Professor  James  B.  Thayer  delivered  an  address 


472  HARVARD  LAW  SCHOOL. 

in  Sanders  Theatre,  before  the  members  of  the  School  and  invited 
guests. 

In  1901-02,  the  number  of  students  dropped  to  633 — a  loss  of 
22.  President  Eliot  in  his  Annual  Report  pointed  out  that  the 
number  of  colleges  represented  by  graduates  in  the  Law  School 
was  92,  as  contrasted  with  25,  thirty  years  ago. 

The  following  men  were  appointed  Instructors  for  the  academic 
year:  William  R.  Peabody  (LL.B.  1898,  May  13,  1901),  on 
Criminal  Law;  Joseph  L.  Stackpole  Jr.  (LL.B.  1898,  July  12, 
1901),  on  Patent  Law;  Bruce  Wyman  was  re-appointed  Lecturer 
on  Suretyship  and  Mortgage,  May  13,  1901 ;  and  Ezra  R.  Thayer, 
Lecturer  on  Massachusetts  Law  and  Practice,  May  13,  1901. 

Many  minor  changes  in  courses  were  made  necessary  by  the 
assumption  of  Langdell's  work  by  Ames,  who  gave  the  two 
courses  in  Equity  Jurisdiction;  Strobel  gave  a  course  on 
Admiralty. 

The  chief  and  saddest  event  of  the  year  was  the  sudden  death 
of  Professor  James  Bradley  Thayer  on  February  14,  1902,  at  the 
age  of  seventy-one. 

No  better  description  of  Professor  Thayer  can  be  given  than 
in  the  words  of  his  colleagues  at  the  School,  in  their  tributes, 
published  in  the  Harvard  Law  Revieiu  (Vol.  XV),  in  April, 
1902. 

Professor  Williston  said : 

The  two  most  striking  characteristics  of  his  teaching  were  the 
charming  personal  courtesy  felt  in  all  his  discussions  with  his 
class,  and  the  painstaking  accuracy  which  he  exhibited  himself, 
and  without  which  no  student,  however  brilliant,  could  satisfy 
him.  Every  teacher  of  large  classes  must  consciously  or  uncon- 
sciously adjust  his  main  efforts  to  the  minds  of  a  portion  of  his 
students.  The  brilliant,  the  mediocre,  and  the  dull  cannot  always 
get  nourishment  from  the  same  food.  It  was  to  the  better  men 
in  his  classes  that  Professor  Thayer's  teaching  was  chiefly 
addressed.  His  desire  seemed  rather  to  fathom  the  depths  of  the 
subject  before  him  than  by  evading  difficulties  and  exceptions  to 
present  the  simpler  outlines  of  the  law  in  such  fashion  that  the 
dull  and  the  slow  could  comprehend  them.  He  was  infinitely 
patient  with  the  poorly  gifted,  but  he  did  not  let  the  limits  of  their 
comprehension  define  the  boundaries  of  the  work  in  his  courses. 

.  .  .  I  have  always  thought  his  analysis  of  a  case  more 
exact  and  complete  than  that  of  anyone  else  I  ever  knew.  .  .  . 
His  originality  lay  chiefly  in  the  depth  of  his  historical  research, 
the  accuracy  of  his  restatement  of  the  law,  and  the  logical  acumen 


AMES  PERIOD.  473 

with  which  he  traced  the  consequences  of  a  recognized  principle. 
Few  indeed  can  have  attended  his  lectures  without  learning 
more  than  the  legal  doctrines  which  were  the  direct  objects  of 
their  study.  Something,  at  least,  of  the  accurate  and  careful 
habits  of  mind,  the  patience  in  wearisome  investigation,  the 
absolute  intellectual  sincerity,  the  never-failing  kindness  and 
courtesy  which  distinguished  the  teacher,  must  have  borne  fruit 
in  the  minds  and  hearts  of  the  pupils. 

Professor  Ames  said : 

During  the  early  years  of  his  service,  he  lectured  on  a  variety 
of  legal  topics,  but  Evidence  and  Constitutional  Law  were 
especially  congenial  to  him,  and  in  the  end  he  devoted  himself 
exclusively  to  these  two  subjects,  in  each  of  which  he  had  pre- 
pared for  the  use  of  his  classes  an  excellent  Collection  of  Cases. 
Evidence  was  an  admirable  field  for  his  powers  of  historical 
research  and  analytical  judgment.  He  recognized  that  our  artifi- 
cial rules  of  evidence  were  the  natural  outgrowth  of  trial  by  jury, 
and  could  only  be  explained  by  tracing  carefully  the  development 
of  that  institution  in  England.  The  results  of  his  work  appeared 
in  his  Preliminary  Treatise  on  the  Lav.1  of  Evidence,  a  worthy 
companion  of  the  masterly  Origin  of  the  Jury,  by  the  distinguish- 
ed German,  Professor  Brunner.  His  book  gave  him  an  immed- 
iate reputation,  not  only  in  this  country,  but  in  England,  as  a  legal 
historian  and  jurist  of  the  first  rank.  An  eminent  English  lawyer, 
in  reviewing  it,  described  it  as  "a  book  which  goes  to  the  root  of 
the  subject  more  thoroughly  than  any  other  text-book  in 
existence."  .  .  .  Although  he  has  published  no  treatise  upon 
Constitutional  Law,  he  has  achieved  by  his  essays,  by  his  Collec- 
tion of  Cases,  and  by  his  teaching,  a  reputation  in  that  subject 
hardly  second  to  his  rank  in  Evidence.  To  the  few  who  knew 
of  it,  President  McKinley's  wish  to  make  Professor  Thayer  a 
member  of  the  present  Philippine  Commission  seemed  a  natural 
and  most  fitting  recognition  of  his  eminence  as  a  constitutional 
lawyer,  and,  if  he  had  deemed  it  wise  to  accept  the  position 
offered  to  him,  no  one  can  doubt  that  the  appointment  would 
have  commanded  universal  approval. (i) 

Wherever  the  Harvard  Law  School  is  known,  he  has  been 
recognized  for  many  years  as  one  of  its  chief  ornaments.  When, 
in  1900,  the  Association  of  American  Law  Schools  was  formed, 
it  was  taken  for  granted  by  all  the  delegates  that  Professor 
Thayer  was  to  be  its  first  president.  No  one  can  measure  his 
great  influence  upon  the  thousands  of  his  pupils.  While  at  the 
School,  they  had  a  profound  respect  for  his  character  and  ability, 
and  they  realized  that  they  were  sitting  at  the  feet  of  a  master 
of  his  subjects.  In  their  after  life,  his  precept  and  example  have 

( i )  Professor  Thayer  also  drafted  a  Constitution  nnd  Code  for  Dakota 
which  was  adopted  with  slight  amendment. 


474  HARVARD  LAW  SCHOOL. 

been,  and  will  continue  to  be,  a  constant  stimulus  to  genuine, 
thorough,  and  finished  work,  and  a  constant  safeguard  against 
hasty  generalization  or  dogmatic  assertion.  His  quick  sympathy, 
his  unfailing  readiness  to  assist  the  learner,  out  of  the  class-room 
as  well  as  in  it,  and  his  attractive  personality,  gave  him  an  excep- 
tionally strong  hold  upon  the  affections  of  the  young  men.  Their 
attitude  towards  him  is  well  expressed  in  a  letter  that  came  to 
me  this  morning  from  a  recent  graduate  of  the  School,  who 
describes  him  as  "one  of  the  best  known,  best  liked,  and  strongest 
of  the  Law  Professors." 

Professor  Smith  said : 

The  work  by  which  Professor  Thayer  will  be  best,  known  to 
the  next  generation  of  lawyers  is  his  Preliminary  Treatise  on  Evi- 
dence at  the  Common  Law.  What  is  the  impression  which  that 
book  would  make  upon  a  legal  reader  who  is  an  entire  stranger  to 
the  author? 

One  of  the  first  impressions  would  relate  to  the  character  of 
the  writer.  The  reader  will  undoubtedly  say  that  the  man  who 
stands  behind  this  book  must  have  been  a  person  of  singular 
modesty  and  remarkable  candor.  Here  is  a  man  who  puts  for- 
ward original  ideas  and  important  views  without  flourish  of  trum- 
pets or  claiming  the  merit  of  discovery ;  a  man  who  never  over- 
states the  case  in  support  of  his  own  theories,  and  is  always 
careful  to  give  full  space  and  due  weight  to  the  argument  opposed 
to  his  own  views.  Every  page  bears  evidence  of  the  quality  which 
Martineau  calls  "intellectual  conscientiousness." 

But  the  competent  lawyer  who  reads  this  book  in  the  next  gen- 
eration will  not  stop  with  the  conclusion  that  it  was  the  work  of 
an  honest  man.  He  will  say  that  it  proceeds  from  an  intellect 
which  is  both  profound  and  patient.  He  will  praise  not  only  the 
substance,  but  also  the  arrangement  of  the  topics.  Every  brick  in 
the  edifice  is  laid  in  its  proper  place,  and  every  brick  was  carefully 
rung  before  it  was  laid.  There  was  first  a  careful  investigation  of 
authorities ;  and  then  a  re-examination  of  the  subject  as  if  it  were 
a  new  matter. 

Professor  Thayer  goes  straight  to  the  fundamentals  of  the 
topic.  He  does  not  content  himself  with  repeating  stereotyped 
formulas,  nor  is  he  satisfied  with  half  solutions  of  difficulties.  On 
the  contrary,  he  gets  behind  the  ordinary  explanations.  He  does 
not  fall  into  the  mistake,  alluded  to  by  Fitzjames  Stephen,  of 
supposing  that  the  rules  of  evidence  "had  an  existence  of  their 
own  apart  from  the  will  of  those  who  made  them."  Instead,  he 
takes  us  back  to  the  very  birth  of  these  rules,  and  shows  when, 
why,  and  how  each  of  them  came  to  be.  Nothing  can  exceed  his 
thoroughness  in  this  respect. 

But  why  did  we  have  from  Professor  Thayer  only  a  Prelimin- 
ary Treatise?  Why  did  he  spend  his  strength  on  that,  instead  of 


AMES  PERIOD.  475 

at  once  putting  forth  a  practical  treatise  on  the  Law  of  Evidence 
as  now  administered  by  the  courts  ?  The  answer  is  to  be  found  in 
the  Introduction  to  the  published  work ;  and  it  marks  both  the 
honesty  and  the  thoroughness  of  the  man.  Many  years  ago  he 
began  to  write  a  practical  treatise;  but  after  he  had  made  a 
beginning,  he  found  the  need  of  going  largely  into  the  history  of 
the  subject,  and  also  of  making  a  critical  study  of  certain  related 
topics  which  overlie  and  perplex  the  main  subject.  He  went  into 
those  examinations,  he  spent  an  immense  amount  of  time  upon 
them ;  and  these  tasks  occupied  all  the  spare  moments  of  his 
remaining  years.  The  results  are  gathered  in  the  published 
volume, — a  work  of  infinite  value,  which,  if  he  had  shrunk  from 
undertaking  it,  would  not  have  been  achieved  at  all  during  the 
present  generation.  Why  was  not  more  work  completed  in  all 
these  years  and  given  to  the  world ;  why  were  not  his  wider  plans 
of  book-making  fully  caried  out?  To  these  questions  more  than 
one  answer  can  be  given.  First :  Professor  Thayer  had  an  abso- 
lute horror  of  what  some  once  calls  "immature  authorship  and 
premature  publication."  We  may  well  apply  to  him  some  of  the 
words  which  Stuart  Mill  uses  in  reference  to  John  Austin :  "He 
had  so  high  a  standard  of  what  ought  to  be  done,  so  exaggerated 
a  sense  of  deficiencies  in  his  own  performances,"  that  he  accom- 
plished less  in  the  way  of  authorship  than  he  seemed  capable  of ; 
"but  what  he  did  produce  is  held  in  the  very  highest  estimation 
by  the  most  competent  judges."(i) 

In  the  spring  and  summer  of  1902,  plans  and  estimates  were 
made  for  a  large  addition  to  Austin  Hall,  but  the  cost  of  the 
proposed  building  was  so  high  that  the  Corporation  and  the  Law 
Faculty  agreed  to  a  postponement.  (2)  The  fact  that  in  1902-03 
the  number  of  students  showed  only  a  moderate  increase  of  n, 
to  644,  encouraged  the  authorities  to  wait  still  longer  before 
building,  although  the  Law  Library  had  so  far  outgrown  Austin 
Hall  that  20,000  volumes  were  shelved  in  the  Annex  to  Lawrence 
Hall. 

A  large  number  of  changes  was  made  in  the  teaching  force. 


(1)  For  further  accounts  of  Professor  Thayer's  life  and  works,  see: 
Publications  of  the   Colonial  Society  of  Massachusetts,   (1902)  ;   James 

Bradley  Thayer,  by  C.  S.  Haight,  Columbia  Law  Review,  Vol.  II ;  John 
Chipman  Gray  in  Harvard  Law  Review,  Vol.  XV. 

(2)  During  the   summer  of  1896,  extensive  alterations  were  made   in 
Austen  Hall,  the  library  stack  being  extended  into  the  roof,  thus  gaining 
two  stories,  a  small  lecture  room  being  constructed  in  place  of  a  store  room, 
and  electric  lights  being  introduced  into  the  stack.     The  sum  of  $21,030.76 
was  spent  for  this  purpose — "a  cause  for  regret,"  said  the  Dean  in  his 
Report,  "that  it  should  be  for  no  better  purpose  than  an  extensive  enlarge- 
ment of  the  building;  but  it  is  a  slight  consolation  that  the  School  would 
be  following  a  precedent  in  its  own  history — the  enlargement  of  Dane  Hall 
in  the  time  of  Judge  Story." 


476  HARVARD  LAW  SCHOOL. 

Edward  B.  Adams  (LL.B.  1897,  appointed  Lecturer,  May  26, 
1902)  assisted  Professor  Westengard  and  Mr.  Wyman  in  Pro- 
fessor Gray's  courses  on  Property.  Charles  J.  Hughes  Jr.  of 
Denver,  Colorado,  (appointed  Lecturer,  Sept.  23,  1902),  gave  a 
new  course  on  Mining  Law.  Rufus  W.  Sprague  (LL.B.  1900, 
appointed  Lecturer,  Jan.  12,  1903)  gave  the  course  on  New  York 
Code  Practice,  taking  the  place  of  Arthur  C.  Rounds,  who  was 
appointed  Lecturer  for  1902-1903,  May  12,  1902,  and  resigned 
Jan.  12,  1903;  William  R.  Peabody  was  re-appointed  Lecturer 
on  Criminal  Law,  May  12,  1902;  Bruce  Wyman  was  appointed 
Lecturer  on  Suretyship  and  Mortgage,  March  31,  1902,  and 
Lecturer  on  Property,  Carriers  and  Conflict  of  Laws,  May  12, 
1902,  and  on  April  13,  1903,  he  was  appointed  Assistant  Professor. 

January  26,  1903,  Ames  was  elected  Dane  Professor  and 
transferred  from  the  Bussey  Professorship.  On  May  26,  1903, 
Eugene  Wambaugh  was  elected  Langdell  Professor;  Joseph 
Henry  Beale  was  elected  Bussey  Professor;  and  Samuel  Willis- 
ton  was  elected  Weld  Professor — all  confirmed  by  the  Board  of 
Overseers,  June  24,  1903. 

September  26,  1902,  Charles  F.  D.  Belden  was  appointed  Assis- 
tant Librarian  and  Frederic  L.  Fischer  Secretary  of  the  Law 
Faculty. 

President  Eliot  in  his  Annual  Report  for  1901-02  noted  one 
marked  feature  of  the  academic  year  1902-03 : 

At  the  request  of  the  University  of  Chicago  and  of  Professor 
Beale,  the  Corporation  gave  Professor  Beale  leave  of  absence 
during  half  of  the  academic  year  1902-03,  and  the  whole  of  the 
academic  year  1903-04,  in  order  that  he  might  organize  and 
develop  during  its  first  two  years,  a  law  school  in  the  University 
of  Chicago  similar  to  the  Harvard  Law  School  in  methods  and 
aims.  This  original  and  instructive  method  of  establishing  a  new 
law  school  is  now  being  successfully  carried  out.  It  is  a  striking 
instance  of  effective  cooperation  by  two  universities.  The  older 
university  thus  puts  all  its  experience  in  carrying  on  a  law  school 
at  the  service  of  the  younger  university,  and  lends  a  valued  pro- 
fessor to  serve  as  organizer  and  temporary  administrator  of  the 
new  school.  It  is  evident  that  the  common  commercial  motives 
have  not  governed  this  transaction. 

Owing  to  the  death  of  Thayer,  the  ill  health  of  Strobel  and  the 
absence  of  Beale  during  the  first  half  year,  a  considerable 
re-arrangement  of  courses  was  made  necessary.  Thayer's  courses 
on  Evidence  and  Constitutional  Law  were  assumed  by  Gray ; 


AMES  PERIOD.  477 

Westengard  and  Mr.  Adams  and  Mr.  Wyman  gave  Gray's  Pro- 
perty Courses;  and  Mr.  Wyman  gave  Conflict  of  Laws  with  Pro- 
fessor Beale  and  a  course  on  Carriers. 

In  1903-04,  the  number  in  the  School  rose  suddenly  and  alarm- 
ingly from  644  to  743,  and  Austin  Hall  had  now  become  absolute- 
ly inadequate.  ( i ) 

The  noted  feature  of  the  year  was  the  departure  of  Professor 
Strobel,  and,  later.  Assistant  Professor  Westengard,  to  Siam, 
they  having  received  the  unusual  honor  of  an  invitation  to  become 
Legal  Advisers  to  the  King  of  Siam.  The  Corporation  appreciat- 
ing the  compliment  to  the  Law  School,  implied  by  this  invitation, 
readily  granted  them  furloughs  for  two  years. 

April  13,  1903,  William  R.  Peabody  was  appointed  Lecturer  on 
Criminal  Law ;  and  Ezra  R.  Thayer,  on  Massachusetts  Law  and 
Practice;  on  June  8,  1903,  Wallace  Brett  Donham  (LL.B.  1901) 
was  appointed  Lecturer  in  Equity,  and  Frederic  Green,  of  Provi- 
dence, R.  I.  (LL.B.  1893,  son  of  the  former  Lecturer,  Nicholas 

(i)     Dean  Ames  in  his  Annual  Report  for  1903-04  said: 

"The  book-stack  in  Austin  Hall  has  room  for  60,000  volumes,  or  less  than 
three-quarters  of  our  83,000  books.  23,000  volumes  are  shelved  in  the  annex 
of  Lawrence  Hall,  to  the  inconvenience  of  the  reader  and  at  the  disquieting 
risk  of  the  destruction  of  the  books.  Furthermore,  the  Library  is  growing 
at  the  rate  of  more  than  5,000  volumes  a  year.  The  lecture  rooms  are  too 
few.  The  reading  room,  having  only  240  seats,  is  suited  to  the  needs  of  a 
school  of  not  more  than  400  students,  or  about  three-fifths  of  those  now 
in  the  School.  There  are  only  seven  Professors'  rooms  for  eleven  Pro- 
fessors. The  administration  room  is  overcrowded,  .and  there  is  no  cata- 
loguing room.  In  a  word,  the  School  has  completely  outgrown  Austin  Hall. 

The  inadequacy  of  the  stack,  the  lecture  rooms  and  Professors'  rooms, 
and  of  the  administration  and  cataloguing  accommodations,  however  in- 
convenient, may  be  endured  for  a  time  without  serious  detriment  to  the 
students.  But  the  insufficient  accommodations  of  the  reading  room  are  a 
serious  menace  to  the  effectiveness  of  the  School. 

When  the  students  numbered  400  or  less,  a  large  majority  of  them  did 
the  greater  part  of  their  work  in  Austin  Hall.  They  were  always  sure  of 
finding  a  seat  at  a  table,  and  in  very  many  cases,  by  the  operation  of  a 
sort  of  Common  Law  of  their  own,  the  same  seat  throughout  the  year.  Be- 
ing within  easy  reach  of  all  the  books  they  formed  the  habit  of  consulting 
freely  the  authorities,  and  gained  a  familiarity  with  the  reports  and  treat- 
ises not  to  be  obtained  in  any  other  way. 

To-day  the  students,  as  a  rule,  do  the  greater  part  of  their  work  in  their 
own  rooms.  Many  would  prefer  to  work  in  Austin  Hall,  but  the  small 
seating  accommodation  makes  it  impossible  to  count  upon  obtaining  a  place 
at  a  table,  and  many  students  abandon  the  attempt  to  get  one.  In  the 
opinion  of  all  the  members  of  the  Law  Faculty  a  return  to  the  former  prac- 
tice of  making  the  reading  room  the  chief  place  of  work  of  the  students  is 
imperatively  demanded,  if  the  School  is  to  maintain  its  high  standard  of 
efficiency.  Steps  should  be  taken  at  once  to  enlarge  Austin  Hall,  or,  if 
that  is  impracticable,  to  build  a  new  home  for  the  School,  and  in  the  new 
building  the  reading  room  or  rooms  should  have  the  capacity  of  seating  at 
one  time  at  least  two-thirds  of  the  students,  and  admit  of  expansion  with 
the  growth  of  the  School." 


478  HARVARD  LAW  SCHOOL. 

St.  John  Green),  Lecturer  on  Admiralty. 

Robert  Bowie  Anderson  was  appointed  Assistant  Librarian 
November  23,  1903. 

The  absence  of  Westengard,  and  Beale,  made  some  re-arrange- 
ment of  courses  necessary.  Wambaugh  took  First  Year  Property 
and  discontinued  Quasi  Contracts ;  Mr.  Donham  gave  Third  Year 
Equity;  Wyman  shared  First  Year  Contracts  with  Williston; 
Gray  resumed  Third  Year  Property ;  Wyman  gave  a  new  course 
on  Administration  of  Law  by  Public  Officers. 

In  1904-05,  the  number  of  students  increased  by  23,  to  766. 
Edward  Henry  Warren  (LL.B.  1900)  was  appointed  Assistant 
Professor,  February  8,  1904,  and  gave  courses  on  Corpora- 
tions, Second  Year  Equity,  and  Second  Year  Property  with 
Beale;  Westengard  was  re-appointed  Assistant  Professor,  June 
20,  1904.  Samuel  Hudson  Hollis  (LL.B.  1901)  was  appointed 
Lecturer  on  Insurance,  Oct.  10,  1904;  Clarence  Harmon  Olson 
(LL.B.  1904),  Lecturer  on  Admiralty;  Rufus  W.  Sprague 
(LL.B.  1900,  appointed  May  i,  1905),  Lecturer  on  New  York 
Code  Practice.  Wambaugh  took  Gray's  course  on  Constitutional 
Law ;  Wyman  gave  Carriers,  Suretyship,  and  six  lectures  on 
"International  Relations — Special  Topics  in  the  Law  of  Peace 
and  War;"  Ames  resumed  Third  Year  Equity  and  First  Year 
Pleading. 

The  distinctive  feature  of  this  year  was  the  appointment  of 
James  C.  Carter,  of  New  York,  a  student  in  the  Law  School 
1851-53.  to  give  a  series  of  lectures  on  the  Origin,  Growth  and 
Function  of  Law.  No  happier  compliment  was  ever  paid  to 
anyone  than  the  remarks,  addressed  to  this  leader  of  the  New 
York  Bar,  nine  years  previously,  by  Joseph  H.  Choate,  at  the 
dinner  of  the  Harvard  Law  School  Association,  June  25,  1895 : 

I  regard  it  as  one  of  the  greatest  privileges  of  my  professional 
life  that  I  was  able  to  supplement  a  two  years'  course  here,  with 
a  period  of  a  few  weeks'  discipline  in  the  office  of  your  distinguish- 
ed President,  Mr.  Carter.  He  already  gave  promise  of  that  actual 
leadership  which  long  ago  he  attained.  .  .  .  Now  let  me  say 
another  word  for  the  encouragement  of  the  graduating  class.  I 
consider  that  America  is  the  paradise  of  judges  and  lawyers,  and 
especially  of  lawyers.  And  when  any  pessimistic  views  are 
expressed,  any  doubts  of  what  these  coming  lawyers  are  to  do, 
I  say  to  them.  "Come  to  New  York,  Mr.  Carter  will  soon  be 
retiring,  and  will  leave  room  for  a  thousand  men." 


AMES  PERIOD.  479 

Mr.  Carter's  untiring  and  successful  work  in  opposition  to  the 
establishment  of  David  Dudley  Field's  Civil  Code,  and  his  bril- 
liant addresses  on  the  Provinces  of  the  Written  and  Unwritten 
Law,  in  1888,  on  the  Proposed  Codification  of  our  Common  Law, 
in  1883,  and  on  Ideals  and  the  Actual  in  the  Law,  in  1890,  mark- 
ed him  out  as  one  of  the  fittest  jurists  in  the  country  for  the 
course  of  lectures  designed.  Unfortunately,  this  course  was  never 
delivered ;  for  on  February  14,  1905,  within  a  few  days  after  the 
completion  of  the  manuscript  of  his  lectures,  Mr.  Carter  died 
suddenly. 

In  1905-06,  the  number  of  students  showed  a  slight  decline,  to 
725.  Strobel  and  Westengard  were  still  absent  in  Siam.  Jeremiah 
Smith  Jr.  (LL.B.  1895,  son  of  Professor  Jeremiah  Smith,  grand- 
son of  Chief  Justice  Jeremiah  Smith)  gave  the  course  on  Massa- 
chusetts Law  and  Practice,  being  appointed  as  Lecturer  May  8, 
1905.  Charles  J.  Hughes,  Jr.  (appointed  Lecturer,  Nov.  6,  1905) 
gave  a  course  on  Mining  and  Irrigation ;  Charles  F.  Dutch  was 
appointed  Instructor  in  Admiralty,  Jan.  29,  1906 ;  and  Samuel  H. 
Hollis,  Instructor  in  Property. 

The  most  important  event  of  the  year  was  the  bequest  made 
by  James  C.  Carter  of  a  sum  of  one  hundred  thousand  dollars 
to  found  a  new  Professorship  as  follows : 

which  I  now  wish  may  be  applied  in  the  establishment  and  main- 
tenance in  the  Law  School  of  the  University  of  a  Professorship 
of  General  Jurisprudence  for  the  especial  cultivation  and  teaching 
of  the  distinctions  between  the  provinces  of  the  written  and 
unwritten  law ;  but  I  do  not  intend  to  control  the  discretion  of  the 
donees  in  respect  to  the  application  of  this  fund.  I  mention  my 
present  preference. 

With  the  record  of  the  addition  of  the  name  of  Carter  to  the 
distinguished  list  of  the  great  benefactors  of  the  Law  School — 
Royall,  Dane,  Story,  Bussey,  Bemis,  Weld  and  Austin ;  and  with 
the  record  of  the  death  of  Christopher  Columbus  Langdell,  which 
occurred  on  July  6,  1906,  the  narrative  portion  of  this  history 
may  be  fittingly  brought  to  a  close. 

There  only  remains  to  add  that  since  Langdell's  death,  a  fitting 
memorial  has  risen  in  his  honor  in  the  shape  of  the  new  Law 
School  Building,  named  during  his  lifetime,  Langdell  Hall. 

Of  this  building,  Dean  Ames  said  in  his  Report  for  1905-06: 

Langdell  Hall  is  rising  rapidly  and  promises  to  be  a  worthy 


480  HARVARD  LAW  SCHOOL. 

memorial  of  Professor  Langdell.  Although,  to  our  great  regret, 
it  was  not  given  to  him  to  see  the  completion  of  the  new  building, 
it  is  a  great  satisfaction  to  us  that  he  lived  to  know  that  the 
ground  had  been  broken  for  this  monument  to  his  great  achieve- 
ments. 

In  his  Report  for  1906-07,  he  said : 

The  lecture  rooms  in  Langdell  Hall  have  been  used  for  some 
weeks.  The  books  are  installed,  and  the  entire  building  is  now 
ready  for  occupation.  In  some  respects  the  convenience  of  the 
School  has  been  sacrificed  to  architectural  considerations,  but  the 
two  buildings  will,  for  a  dozen  years  at  least,  give  dignified,  attrac- 
tive and  ample  accommodations  for  all  the  needs  of  the  School. 

The  following  description  of  the  new  building  has  recently 
been  written  by  Professor  Eugene  Wambaugh. (i) 

The  building  was  not  ready  for  occupancy  at  the  beginning  of 
the  academic  year  1907-08,  but  parts  of  it  were  ready  shortly 
afterwards.  The  first  lecture  was  delivered  at  9  o'clock,  on  Oct. 
17,  1907.  By  the  beginning  of  1908  nearly  the  whole  of  the 
building  was  in  use. 

The  present  dimensions  of  Langdell  Hall  are:  from  north  to 
south,  two  hundred  and  twenty-nine  feet ;  from  east  to  west, 
seventy  feet  in  the  stack,  eighty-two  feet  in  the  wing  south  of  the 
stack,  forty-seven  feet  in  the  wing  at  the  extreme  south ;  and 
eighty-three  feet  from  basement  to  roof.  The  cost,  including 
plants  for  heating  and  ventilation,  but  not  including  furnishing, 
has  been  $365,000.  The  cost  has  been  paid  out  of  the  surplus 
earned  by  the  School.  When  the  building  is  completed,  its  length 
will  be  increased  by  one  hundred  and  thirty-two  feet.  In  other 
words,  the  portion  now  built  is  about  two-thirds  of  the  whole 
building.  The  material  is  buff  limestone.  The  style  is  classic. 
The  general  effect  is  square  and  lofty,  reminding  one  of  other 
works  of  the  architects,  Messrs.  Shepley,  Rutan  &  Coolidge. 
Perhaps  the  most  noticeable  features  are  the  great  Ionic  columns 
— which  may  serve  as  reminders  of  the  modest  columns  that  used 
to  ornament  Dane  Hall.  The  east  and  west  fronts  are  identical. 

In  the  northern  part  of  Langdell  Hall  as  it  now  stands,  but  in 
the  central  part  of  the  building  as  it  is  to  be,  is  the  library  stack, 
which  ultimately  will  accommodate  three  hundred  thousand  vol- 
umes. As  yet  only  the  eastern  half  of  the  stack  is  fitted  with 
shelving,  the  western  half  being  used  for  one  supplemental  read- 
ing room  and  one  small  lecture  room.  At  the  north  and  south 
ends  of  the  stack  are  studies  for  the  Professors  and  Librarians. 
The  stack  is  fireproof,  with  glass  floors  and  metal  shelving;  and 


(i)     See  Green  Bag,  Vol.  XX  (June,  1908). 


cti 

w 


buO 

a 
a 


bo 
fl 


pq 

^ 

0) 


AMES  PERIOD.  481 

on  one  of  the  floors  are  desks  for  the  Professors,  separated  by 
glass  partitions  for  the  sake  of  quiet,  so  that  the  Professors  have 
that  ease  of  consulting  the  books  and  one  another  which  has  long 
been  an  attractive  feature  of  the  Law  School. 

South  of  the  stack  is  a  broader  section  of  the  building,  contain- 
ing on  the  ground  floor  a  lecture  room  called  Langdell  Centre, 
which  is  somewhat  larger  than  Austin  North  and  accommodates 
about  three  hundred  and  fifty.  Above  this  lecture  room  is  the 
main  reading  room,  somewhat  larger  than  the  main  reading  room 
in  Austin  Hall.  Still  farther  south  is  a  lower  and  narrower  wing, 
containing  on  the  ground  floor  a  lecture  room  which  accommo- 
dates about  one  hundred  and  seventy-five;  and  upon  the  upper 
floor  is  another  reading  room  which  connects  with  the  main  read- 
ing room  by  a  passage  in  which  are  placed  works  of  reference. 
Around  the  walls  of  the  reading  rooms  are  several  thousands  of 
volumes,  chiefly  reports  that  are  duplicates  of  copies  in  the  stack. 
The  main  reading  room,  the  south  reading  room,  and  the  passage 
connecting  these  two  accommodate  two  hundred  and  seventy- 
seven  ;  and  the  supplemental  reading  room  in  its  stack  accommo- 
dates eighty-four. 

The  public  entrances  to  Langdell  Hall  are  at  the  head  of  broad 
steps  leading  to  the  east  and  west  ends  of  a  corridor  that  runs 
between  the  lecture  room  called  Langdell  Centre  and  the  one 
called  Langdell  South.  There  is  also  a  subway  connecting  Lang- 
dell with  Austin. 

When  the  whole  of  Langdell  Hall  is  built,  there  will  be  to  the 
north  of  the  stack  precisely  the  same  amount  of  reading  room 
and  of  lecture  room  accommodation  as  is  now  found  to  the  south 
of  the  stack ;  but  the  interior  arrangements  may  differ  in  some 
details  from  the  arrangements  of  the  parts  now  completed.  The 
present  small  lecture  room  in  the  stack  is  to  become  part  of  the 
region  for  storing  books,  and  the  present  supplemental  reading 
room  in  the  stack  is  to  become  a  corridor  connecting  the  southern 
reading  rooms  with  those  which  are  to  be  constructed  in  the 
northern  extension. 

In  addition  to  the  features  already  described,  there  are  various 
conveniences,  including  a  room  for  the  Harvard  Law  Review, 
metal  lockers,  a  freight  elevator,  and  an  electric  lift  for  books. 
The  woodwork  throughout  is  dark  oak.  It  ought  to  be  added 
that  among  the  most  attractive  features  are  the  adequate  studies 
for  the  Professors  and  the  successful  schemes  for  light  and  for 
ventilation.  The  walls  will  soon  be  ornamented  with  engravings 
and  paintings,  without,  however,  robbing  Austin  Hall. 

According  to  the  present  mode  of  dividing  the  work  of  the 
School  between  the  two  buildings,  Austin  Hall  is  devoted  to  most 
of  the  lectures  in  second  year  subjects  and  its  reading  room  is 
supposed  to  be  used  by  students  of  that  year,  for  whose  benefit 
the  walls  of  the  reading  room  are  supplied  with  books  as  hereto- 
fore, and  the  stack  is  also  provided  with  a  large  library;  and 


482  HARVARD  LAW  SCHOOL. 

Langdell  Hall  is  devoted  to  lectures  for  first  year  students  and  for 
third  year  students,  and  its  reading  rooms  are  designed  chiefly 
for  them,  and  its  stack  holds  the  principal  library,  including  dupli- 
cates of  the  books  found  elsewhere. 

Between  Langdell  Hall  and  Walter  Hastings  there  is  to  be 
something  like  a  private  yard  for  the  Law  School,  called  the  Law 
Court.  Between  Langdell  Hall  and  Pierce  Hall  is  a  much  larger 
yard.  The  view  of  Langdell  Hall  from  either  one  of  these  yards 
is  impressive,  but  Langdell  Hall  is  so  completely  surrounded  by 
other  buildings  that  no  adequate  view  of  it  can  be  obtained  from 
the  streets.  It  already  dominates  Holmes  Field,  for  it  is  the 
largest  and  most  striking  building  there.  It  is  at  present  about 
twice  the  size  of  Austin.  When  finally  completed  it  will  probably 
remain  for  many  years  one  of  the  largest  buildings  in  Cambridge, 
for  it  will  be  at  least  fifty  feet  longer  than  Memorial  Hall.  In 
style  of  architecture  and  in  color  it  differs  emphatically  from  all 
neighboring  buildings.  In  commenting  upon  this  diversity,  an 
English  barrister  said — as  doubtless  many  an  American  lawyer 
will  say — "From  what  I  know  of  Professor  Langdell's  services 
to  the  law  I  am  of  opinion  that  a  monument  to  him  may  appropri- 
ately be  unique." 


CHAPTER  XLVII. 

THE  LIBRARY  1869-1907. 

i 
It  is  not  by  reason  of  methods  and  instructors  alone  that  the 

Harvard  Law  School  has  stood  in  the  forefront  of  the  progres- 
sive movement  of  legal  education.  From  Judge  Story's  advent, 
in  1829,  until  the  present  day,  its  Library  has  excelled  all  other 
law  school  libraries  in  size  and  completeness. 

That  this  has  been  the  fact  has  been  chiefly  due  to  the  convic- 
tion, shared  in  by  all  its  various  Professors,  that  the  possession 
of  a  complete  law  library  was  essential  and  that  constant  use  of 
the  library  by  the  students  was  one  of  the  most  beneficial  parts  of 
their  education. 

Since  lack  of  funds,  during  the  War  Period,  had  greatly 
retarded  the  growth  of  the  Library,  it  was  one  of  the  chief  aims 
of  Langdell  and  Eliot  and  of  the  Corporation  to  build  it  up  to 
its  proper  size  and  scope;  and  the  Annual  Reports  of  the  Dean 
and  of  the  President  contain  constant  references  to  the  reforms 
introduced  into  its  administration. 

In  the  very  first  year  of  the  new  regime,  nearly  $2,000  was  spent 
for  books  and  binding  (as  contrasted  with  an  average  of  about 
$800  for  the  preceding  ten  years)  "the  Library  being  regarded  as 
a  principal  means  of  instruction,"  wrote  President  Eliot,  in  his 
Annual  Report  for  1869-70. 

The  most  important  and  radical  reform  introduced  was  the 
appointment  of  a  permanent  Librarian.  ( I )  James  A.  L.  Whittier 
was  appointed  by  the  Corporation,  January  6,  1870,  at  a  salary  of 
$500,  his  term  to  date  from  September  7,  1869.  On  May  27, 
1870,  it  was  voted  to  "dispense  with  the  services  of  J.  A.  L.  Whit- 
tier  as  Librarian  after  Sept.  I,"  and  September  30,  William  A. 
Everett  was  appointed  in  his  place  at  a  salary  of  $i,ooo. 


(i)  President  Eliot  said  in  his  Annual  Report,  the  same  year,  1870-71: 
"The  Law  School  of  the  University,  besides  its  formal  courses  of  in- 
struction, offers  great  incidental  advantages.  Its  rich  Library  is  an  indis- 
pensable aid  to  the  student.  The  Corporation,  feeling  the  importance  of 
still  further  enlarging  this  Library  and  improving  its  administration,  have, 
during  the  year  1870-71,  employed  a  permanent  Librarian,  spent  about 
$1,200  on  the  shelves  and  other  fittings  of  the  room,  and  about  $3,000  on 
books  and  binding." 


484  HARVARD  LAW  SCHOOL. 

The  next  year,  Dean  Langdell  introduced  important  changes 
in  the  administration  of  the  Library,  the  Corporation  appropriat- 
ing $800,  October  14,  1870,  for  the  repairs  made  necessary. 

These  were  described  by  him  in  his  Annual  Report  for  1870-71 
as  follows: 

At  the  beginning  of  the  year  important  changes  went  into  effect 
in  regard  to  the  Law  Library.  Prior  to  that  time,  it  had  all  been 
kept  together,  the  books  being  arranged  in  alphabetical  order,  and 
there  being  no  systematic  attempt  to  provide  duplicates  of  such 
books  as  were  in  constant  use.  From  the  opening  of  Dane  Hall 
in  the  morning  to  the  closing  of  it  in  the  evening  the  entire 
Library  was  accessible,  without  restriction  and  without  supervis- 
ion, not  merely  to  the  members  of  the  School,  but  to  all  persons. 
The  Librarian  had  generally  been  a  member  of  the  School,  who 
occupied  a  room  in  Dane  Hall,  and  received  a  trifling  compensa- 
tion in  addition  to  his  room-rent  and  tuition.  It  was  not  any  part 
of  his  duty  to  spend  any  of  his  time  in  the  Library ;  still  less  to 
exercise  any  authority  or  supervision  over  those  who  used  it. 
The  janitor  had  certain  duties  to  perform  in  reference  to  the 
Library ;  but  is  was  not  his  business  to  exercise  any  authority  or 
supervision  over  those  who  used  it,  nor  was  he  expected  to  remain 
in  it,  except  when  certain  specific  duties  required  his  presence.  In 
fact,  as  the  Librarian  and  janitor  were  situated,  it  was  out  of  the 
question  for  them  to  exercise  a  constant  supervision  over  the 
Library,  and  any  partial  supervision  would  have  been  useless. 

The  result  of  this  system  being  found  very  unsatisfactory,  it 
was  decided  to  make  three  radical  changes,  namely :  first,  to 
require  the  constant  attendance  of  the  Librarian  or  his  assistant 
in  the  Library  during  all  the  hours  that  it  was  open ;  second,  to 
render  the  general  library  inaccessible  except  with  the  Librarian's 
permission ;  third,  to  procure  duplicates  of  all  such  books  as  are 
in  constant  use,  and  with  these  to  form  a  working  library,  to- 
which  every  student  should  have  free  access. (i) 

(i)  The  necessity  for  these  changes,  however,  was  well  stated  in  the 
Report  of  the  Law  School  Visiting  Committee  to  the  Overseers,  in  Octo- 
ber, 1871 : 

"Under  the  new  rule  there  is  an  obvious  advantage  that  a  student  seek- 
ing a  book,  if  it  is  not  in  its  place,  can  at  least  be  told  where  it  is.  .  .  . 
The  Librarian  also  has  discretion  to  give  access.  .  .  .  The  Committee 
regret  that  any  restraint  should  be  found  necessary,  but  they  consider 
the  present  rule  as  an  experiment  to  which  fair  trial  should  be  given. 
The  evil  which  it  was  introduced  to  remedy  was  real  and  pressing.  .  .  . 

.  .Losses  have  been  of  a  very  serious  character  heretofore.  The  reason 
why  no  more  exact  statement  can  be  made  is  the  fact  that  no  correct  cata- 
logue of  accessions  has  been  kept  for  the  last  twenty-five  years ;  and  as 
there  are  no  means  of  knowing  accurately  what  or  how  many  books  make 
up  the  Library,  it  is  impossible  to  state  accurately  what  or  how  many  are 
missing  or  lost.  The  last  catalogue  was  printed  in  1846,  and  since  that 
time  a  chronological  list  of  accessions  has  been  kept  which  is  of  little  use 
for  reference  and  is  stated  to  be  not  entirely  trustworthy.  .  .  . 


LIBRARY  1869-1907.  485 

During  the  summer  vacation  of  1870,  these  changes  were  car- 
ried into  effect.  A  permanent  Librarian  was  employed,  whose 
duty  it  was  made  to  devote  his  whole  time  and  attention  to  the 
interests  of  the  Library.  The  working  library  was  formed  in  the 
main  by  taking  such  books  from  the  general  library  as  seemed 
desirable  for  that  purpose,  and  supplying  their  places  with  new 
copies. 

The  working  library  is  separated  from  the  general  library  by  a 
railing,  and  when  books  from  the  latter  are  wanted,  they  are 
given  out  by  the  Librarian  and  his  assistant,  the  names  of  the 
books  being  entered  on  a  slip  of  paper,  which  is  retained  until  the 
books  are  returned.  When  a  student  asks  permission  to  go  behind 
the  railing  to  examine  books,  such  permission  is  never  refused 
when  the  Librarian  is  present. 

In  connection  with  the  Library,  it  is  proper  to  notice  another 
important  change.  It  had  always  been  the  practice  to  furnish 
every  student,  as  a  gratuitous  loan,  with  a  copy  of  every  text-book 
used  in  the  School.  This  made  it  necessary  to  purchase  from  one 
hundred  to  one  hundred  and  fifty  copies  of  every  new  text-book 
introduced ;  and  as  the  works  used  as  text-books  sometimes  con- 
sisted of  as  many  as  three  or  four  volumes,  and  as  the  books  thus 
purchased  were  generally  superseded  in  a  few  years  by  other 
books,  or  by  new  editions,  it  was  found  to  be  a  great  and  constant 
source  of  expense  to  the  School ;  so  great,  indeed,  that  the  general 
library  had  suffered  severely  in  consequence,  it  being  impossible, 
for  want  of  funds,  to  supply  its  most  pressing  needs.  This  prac- 
tice has  been  entirely  discontinued  since  the  beginning  of  the  year 
1870-71,  so  far  as  the  purchase  of  new  books  is  concerned;  and 
students  have  been  left  to  supply  themselves  with  such  books  as 
have  been  introduced  since  that  time.  No  reason  has  been  seen 
for  doubting  the  wisdom  of  this  change.  There  are  obvious 
advantages  to  the  student  from  owning  the  books  which  he  uses 
as  text-books ;  he  can  always  supply  himself  with  the  best 
editions ;  and,  as  the  course  of  study  is  not  arranged,  it  is  believed 
that  the  necessary  expense  for  text-books  in  the  Law  School  is 
not  materially  greater  than  in  the  College  proper. 

These  changes,  it  is  to  be  noted,  were  almost  exactly  those 
recommended  by  the  sub-committee  of  the  Library  Visiting  Com- 
mittee in  the  early  part  of  the  previous  decade,  which  had  been 
so  earnestly  opposed  by  the  Law  Faculty  of  that  period.  They 
were  also  made  in  conformity  with  the  Report  of  the  Visiting 
Committee  to  the  Board  of  Overseers,  of  October  17,  1870,  which 
said: 

It  is  much  to  be  regretted  that  the  Library,  which  was  formed 
on  a  comprehensive  plan,  has  not,  of  late  years,  kept  up  with  the 
progress  of  the  law,  and  that  its  condition,  as  respects  the  pre- 


486  HARVARD  LAW  SCHOOL. 

servation  of  the  books,  is  not  agreeable  to  the  lover  of  books,  or 
the  lover  of  learning.  The  attention  of  the  Law  Faculty  is 
directed,  as  the  committee  have  reason  to  know,  to  some  method 
for  the  better  preservation  of  the  Library,  and  for  the  more  care- 
ful and  systematic  selection  of  books  by  purchase ;  and  it  is  much 
to  be  desired  that  such  a  plan  may  soon  be  devised  and  carried 
into  execution.  ( I ) 

The  students  themselves  strenuously  opposed  one  of  these  new 
reforms — the  institution  of  the  railing,  preventing  access  to  the 
books.  William  A.  Everett,  Librarian  at  that  time,  writes 
(1908): 

The  rail  which  fenced  off  the  main  portion  of  the  Library  from 
the  reading  room  was  obnoxious  to  the  older  students  who  had 
been  able  to  "browse  around"  (as  Lincoln  has  it)  among  the 

books  at  their  sweet  will,  without  the  restriction.  One  K , 

one  of  the  most  industrious  men  in  the  School  and  doing  excellent 
work,  was  defiant  in  ignoring  the  rule  and  openly  determined  on 
having  his  own  way  against  all  I  could  say  to  him.  So  finding 
myself  of  no  account  with  the  man,  I  reported  the  case  to  Dean 
Langdell.  He  was  thoroughly  alarmed  at  the  crisis.  "What  can 
I  do  ?  What  can  I  do  ?"  was  all  that  he  could  say.  I  replied  that 
it  was  up  to  him  to  settle  the  affair,  for  I  proved  myself  powerless 
for  the  first  time.  His  advice  was  "Write  to  the  President."  So 
I  sent  a  statement  to  President  Eliot.  In  a  few  hours  a  sealed 
letter  was  laid  on  my  desk  by  the  College  Secretary  addressed  to 

K .     I  watched  him  quietly  while  he  read  it  and  I  think 

I  never  saw  a  person  more  astounded.     I  had  no  difficulty  with 

K thereafter.    The  President  had  settled  the  case  with  his 

usual  decision. 


(i)  This  Report  had  called  forth  from  ex-Professor  Joel  Parker  a 
powerful  and  sarcastic  reply,  in  which  he  reviewed  at  length  the  adminis- 
tration of  the  Library  during  his  term  of  office,  and  called  the  report  an 
attempt  "to  herald  the  glory  of  the  new  order  of  things  by  a  little  de- 
preciation of  the  old." 

He  pointed  out,  especially,  the  low  condition  of  the  School's  finances, 
during  his  regime,  in  its  effect  on  the  Library.  He  also  insisted  vigor- 
ously that  the  freest  access  to  the  Library  by  the  students  was  an  abso- 
lute necessity,  and  he  concluded : 

"The  usage  of  the  School,  which  for  forty  years  gave  the  students  free 
access  to  the  books  in  the  general  library,  a  privilege  which  the  Professors 
deemed,  if  not  essential,  highly  valuable,  and  of  which  even  the  special 
committee,  in  1862,  said,  'The  privilege  cannot  be  abridged,  and  rules  must 
be  made  to  conform  to  this  necessity,'  has  itself  been  made  to  conform 
to  some  other  necessity,  and  the  students  are  now  fenced  off  from  access 
to  the  books,  except  as  they  receive  them  from  the  hands  of  the  Librarian, 
or  his  assistants.  They  can  therefore  rest  assured  that  their  morals  are 
secured  thus  far,  and  if  a  sufficient  number  of  washstands,  with  their 
appurtenances,  shall  be  provided,  the  new  additions  may  be  preserved  to 
some  extent,  in  such  condition  as  to  be  agreeable  to  that  class  of  the 
lovers  of  books,  who  think  more  of  their  covers  than  they  do  of  their 
contents." 


LIBRARY  1869-1907.  487 

It  could  not  be  expected,  however,  that  so  radical  a  revolution 
in  the  Library  administration,  would  meet  with  immediate  accep- 
tance, or  could  be  initiated  without  temporary  embarrassment. 
Nevertheless  its  operation  soon  became  satisfactory.  President 
Eliot  and  the  Corporation  cordially  sustained  Langdell  in  all  his 
ideas,  recognizing,  as  Eliot  said  in  his  Annual  Report  for  1872-73, 
"the  fact  that  the  Library  is  the  very  heart  of  the  School,"  and  as 
Langdell  said,  the  same  year,  ''everything  else  will  admit  of  a 
substitute  or  may  be  dispensed  with ;  but  without  the  Library 
the  School  would  lose  its  most  important  characteristic,  and 
indeed  its  identity." 

After  the  reforms  in  the  administration  and  care  of  the  Library 
were  well  established,  two  grave  problems  confronted  the  School. 
The  first  was  the  inadequacy  of  the  rooms  containing  the  Library, 
not  only  by  reason  of  lack  of  space  for  books,  but  through  their 
seriously  overcrowded  condition  in  their  daily  growing  use  by  the 
students  . 

In  his  Annual  Report  for  1873-74,  Dean  Langdell  said : 

Notwithstanding  the  facilities  for  study  in  the  Library  were 
materially  increased  during  the  year  1873-74  it  not  infrequently 
happens  that  there  are  more  men  in  the  Library  than  can  find 
places  at  the  tables ;  and  on  no  day  in  the  week  is  the  Library 
so  crowded  as  on  that  which  has  always  been  a  holiday  in  the 
School,  viz.,  Saturday.  Nor  is  this  to  be  regarded  merely  as  testi- 
mony to  the  industry  of  the  School ;  it  is  still  more  significant  as 
indicating  the  kind  of  work  that  is  in  vogue.  The  work  done  in 
the  Library  is  what  the  scientific  men  call  original  investigation. 


This  opposition  continued  for  several  years,  and  was  well  voiced 
by  Jesse  C.  Ivy  (L.  S.  1874-77)  in  the  Harvard  Advocate,  Dec.  17,  1875 
(Vol.  XX),  in  an  article  on  The  Law  School  Library: 

"There  are  about  1,800  volumes,  embracing  the  principal  English,  Massa- 
chusetts, United  States  Supreme  Court,  New  York  reports  and  a  few 
general  treatises,  digests,  etc.,  which  the  student  during  the  hours  the 
Library  is  open  may  take  from  and  return  to  the  shelves  at  pleasure.  The 
remainder,  14,000  volumes,  is  behind  what  is  known  as  "the  Bar."  To  get 
any  of  these  latter  books  you  must  write  the  name  of  the  book,  the  num- 
ber of  the  volume  and  your  name  upon  a  slip  of  paper,  hand  it  to  the 
Librarian  or  his  assistant,  await  if  he  sees  proper  his  conclusion  as  to 
whether  the  book  is  outside  "the  Bar"  or  not,  and  abide  his  return  with 
the  book. 

The  time  lost,  laying  aside  the  apparent  red  tape  of  this  proceeding, 

often  would  be  sufficient  to  read  the  case  sought A  book  kept 

outside  compared  to  one  kept  inside  the  Bar  passes  from  student  to  stud- 
ent nearly  as  fast.  In  fine,  we  know  of  no  better  commentary  on  the 
present  arrangement  of  the  Library  than  the  remark  of  several  considerate 
students  that  they  thought  at  least  one  quarter  of  the  time  spent  in  the 
Library,  lost." 


488  HARVARD  LAW  SCHOOL. 

The  Library  is  to  us  what  the  laboratory  is  to  the  chemist  or 
the  physicist,  and  what  a  museum  is  to  the  naturalist.  ( I ) 

This  problem  was  solved  by  the  erection  of  Austin  Hall  and  the 
removal  of  the  School  thither,  in  1883. 

The  second  problem  was  the  wear  and  tear  upon  the  books  and 
reports  and  their  actual  destruction  arising  from  the  increased 
use  of  the  Library.  And  as  the  Case  System  became  more  and 
more  adopted,  this  consumption  of  books  increased.  The  difficul- 
ty, sometimes  the  impossibility  of  replacing  single  volumes  of  sets 
of  reports,  was  a  constant  source  of  despair  to  the  Librarian  and 
to  the  Dean.  Reprinting  of  lost  or  injured  volumes — a  costly  ex- 
pedient— was  sometimes  resorted  to.  (2) 


(i)  In  1876-77,  President  Eliot  spoke  of  the  Library  room  as  being 
too  small  for  the  readers,  and  that  the  "very  valuable  Library  ought  to  be 
secured  in  a  fire  proof  building." 

In  1877-78.  Dean  Langdell  noticed  the  temporary  makeshift  which  had 
been  brought  about  during  the  Christmas  recess  at  a  cost  of  $900,  by  alter- 
ing the  lower  story  of  Dane  Hall  so  as  to  take  two  of  the  small  rooms  into 
the  Library  room,  and  said  that  so  "much  inconvenience  had  been  ex- 
perienced from  the  crowded  state  of  the  Library.  This  evil  had  increased 
to  such  a  degree  that  members  of  the  School  not  unfrequently  were  unable 
to  find  a  place  to  sit.  During  the  cold  weather,  also,  it  was  found  impos- 
sible to  obtain  sufficient  ventilation  without  making  the  room  too  cold  for 
either  comfort  or  safety." 

In  1878-79,  Dean  Langdell  said  that  "regarded  as  a  repository  for  books, 
the  accommodation  afforded  by  Dane  Hall  is  very  bad  in  quality  and  in 
the  near  future  will  be  absolutely  insufficient  in  quality;"  and  that  the 
danger  to  the  books  from  fire  was  a  cause  of  constant  anxiety  and  that 
there  was  a  great  want  of  space  for  the  Professors  and  Librarian  to  work 
in. 

(2)     Thus  in  1874-75  Dean  Langdell  said: 

"The  administration  of  the  Library  is  still  highly  successful,  and  the 
resort  to  it  is  constantly  increasing.  Indeed,  this  resort  has  become  so 
great  as  to  bring  with  it  serious  evils ;  it  brings  a  very  great  wear  upon 
the  books  and  makes  the  position  of  the  Librarian  and  his  assistant  very 
laborious". 

The  general  library  is  made  up  largely  of  books  and  sets  of  books 
whose  intrinsic  merit  may  be  of  an  inferior  order,  but  which  are  not  in 
the  market,  and  which  it  is  almost  impossible  to  procure.  Experience  has 
shown  that  a  whole  set  of  such  books  may  be  ruined  by  the  excessive  use 
of  a  single  volume  for  a  special  purpose.  A  case  has  recently  occurred  in 
which  it  will  probably  be  necessary  to  reprint  several  pages  of  a  volume 
of  reports  (which  have  been  literally  worn  out),  as  the  only  means  of 
restoring  the  set.  The  contrast  referred  to  is  very  striking  in  the  case  of 
hooks  of  reports.  Many  of  those  in  the  greatest  demand  are  stereotyped, 
so  that  not  only  any  single  volume,  but  any  part  of  any  volume,  can  be 
had  without  difficulty;  while  many  of  those  in  least  demand  cannot  be  had 
at  any  price,  because  the  demand  for  them  is  not  sufficient  to  warrant  a 
new  edition." 

Fifteen  years  later,  in  1890-91,  he  said: 

"When  the  system  of  teaching  by  cases  was  first  introduced,  it  was 
found  impracticable  to  employ  it  without  printing  the  cases  to  be  used ; 
and  yet  the  School  was  then  only  about  one  third  of  its  present  size. 


w 

d 


LIBRARY  1869-1907.  4«9 

The  partial  solution  of  this  problem  was  brought  about  by  the 
gradual  introduction  of  case  books  in  nearly  all  the  courses,  and 
by  the  purchase  of  duplicate  and  sometimes  triplicate  sets  of 
reports. 

GROWTH  OF  THE  LIBRARY. 

At  the  beginning  of  1869-70,  excluding  the  text  books  bought 
for  the  use  of  the  students,  the  actual  number  of  volumes  in 
the  Library  could  not  have  exceeded  10,000. (i)  In  1906-07, 
according  to  the  report  of  the  College  Librarian,  the  number  of 
volumes  was  102,826  and  the  number  of  pamphlets  11,185. 

The  chief  credit  for  this  remarkable  growth  is  due  to  the 
indefatigable  labors  and  expert  skill  of  the  Librarian.  John  H. 
Arnold,  and  to  the  painstaking  and  laborious  interest  taken  by 
Dean  Langdell,  whose  "great  knowledge  of  the  literature  of  the 
law,  and  whose  willingness  to  devote  much  time  to  consideration 
of  the  needs  of  the  Library  were  of  incalculable  value" — writes 
Mr.  Arnold.  In  the  first  two  years,  the  purchases  made  were 
almost  entirely  of  books  to  cover  the  pressing  needs  of  the 
Library.  (2) 

Now,  however,  the  system  is  so  well  established  and  so  much  in  vogue  that 
it  is  found  practicable  to  employ  it  in  the  largest  classes,  though  no  mem- 
ber of  the  class  be  able  to  study  the  cases  used  except  in  the  books  belong- 
ing to  the  Library;  and  it  is  actually  so  employed  to  an  extent  that  threat- 
ens speedy  ruin  to  the  Library;  and  yet  the  very  circumstance  which  rend- 
ers this  practice  now  so  peculiarly  destructive  to  the  library,  namely,  the 
large  size  of  our  present  classes,  renders  printing  much  more  feasible  than 
formerly,  as  it  enables  an  instructor  who  incurs  the  expense  of  printing  a 
collection  of  cases  to  reimburse  himself  much  more  speedily  than  form- 
erly. 

"It  should  be  clearly  understood  that  its  not  the  amount  but  the  kind  oi 
use  to  which  it  subjects  the  Library  that  constitutes  the  chief  objection  to 
the  practice  in  question.  In  short,  the  objection  to  it  is  that  it  causes 
the  speedy  destruction  of  some  portion  of  every  volume  of  reports  con- 
taining one  or  more  cases  to  which  a  large  class  is  referred,  f.  e.,  so  much 
of  it  as  comprises  the  case  or  cases  referred  to.  Nor  is  the  mischief  con- 
fined to  the  particular  volumes  thus  ruined ;  for  volumes  of  reports  are 
generally  in  sets,  and  the  ruin  of  one  volume  in  a  set  is  the  ruin  of  the 
entire  set  to  which  it  belongs." 

(i)     The   Harvard   Law   Library   in    Ham.    Grad.    Mag.,   Vol.    XVI 
(Dec.,  1907). 

(2)  In  1873-74,  Dean  Langdell  reported  that  more  money  had  been 
expended  for  books  than  in  any  previous  year : 

"This  is  accounted  for  partly  by  the  fact  that  a  gift  from  Judge  Curtis 
enabled  us  to  provide  ourselves  with  duplicate  sets  of  Peter's  Reports  and 
Howard's  Reports,  and  also  with  a  set  of  patent  cases  which  we  had 
hitherto  been  deterred  from  purchasing  by  their  excessively  high  price ; 
partly  also  by  the  fact  that  the  Corporation  made  a  special  appropriation 
to  enable  us  to  purchase  a  superb  set  (which  was  offered  to  us)  of  the 
scries  of  Scotch  Reports  commonly  known  as  Court  of  Session  Cases  in 
fifty-one  large  volumes." 


490  HARVARD  LAW  SCHOOL. 

Beginning  with  January,  1874,  special  attention  was  paid  to 
auction  sales  of  law  books ;  and,  Mr.  Arnold  writes  in  his  recent 
article :  "From  1874  to  the  present  time,  auction  sales  of  law  books 
have  been  most  carefully  attended  by  the  Librarian.  The  cata- 
logues of  the  second-hand  book  sellers,  both  at  home  and  abroad, 
have  been  searched  for  old  books  that  were  not  to  be  found  in  the 
Library.  The  Librarian  has  been  abroad  on  three  occasions,  in 
1888,  1892  and  1898  in  pursuit  of  book  rarities."(i) 

In  1876-77,  the  College  Librarian  made  his  first  formal  Report, 
appended  to  the  President's  Annual  Report ;  and  since  his  Report 
of  1879-80,  the  yearly  increase  of  the  Law  Library,  as  well  as  the 
number  of  volumes  and  of  pamphlets  in  the  Law  Library  each 
year,  has  been  stated  officially. 

From  these  Reports,  it  appears  that  the  Library  had  grown,  in 
1889-90,  to  25,251  volumes  and  3,245  pamphlets.  In  that  year, 
Dean  Langdell  said  in  his  Annual  Report : 

Now,  it  is  believed  to  be  larger  (referring  only  to  law  books 
proper,  and  excluding  statutes),  more  complete,  and  in  a  better 
condition  than  any  other  law  library  in  the  United  States,  with 
the  possible  exception  of  the  National  Library  at  Washington.  Its 
duplicates,  triplicates,  and  quadruplicates  of  English  and  Ameri- 
can reports  alone  number  3,040  volumes. 

In  1891-92,  the  English  reports  numbered  1,637,  and,  tne  next 
year,  the  American  reports  numbered  2.194.  In  1896-97,  Dean 
Ames  reported  that  there  were  three  sets  of  English  and  Federal 
reports,  two  sets  of  all  American  reports  (except  West  Virginia) 
and  three  sets  of  American  reports  of  twelve  States. 

"When  Austin  Hall  was  built  it  was  expected,"  writes  Mr. 
Arnold  (1907),  "that  it  would  be  ample  for  both  School  and 
Library  for  the  next  50  years.  For  more  than  ten  years,  it  has 
afforded  insufficient  accommodation  for  the  School,  and,  although 


(i)  In  1889-90,  President  Eliot  thus  described  the  changes  in  this 
respect  brought  about  by  the  new  regime,  in  his  Annual  Report : 

"Prior  to  1870-71,  and  subsequently  to  the  time  of  Professor  Greenleaf, 
no  one  connected  with  the  School  took  much  interest  in  the  subject  of 
purchasing  books  for  the  Library.  The  practice  was  for  the  booksellers 
with  whom  the  School  kept  an  account  to  send  to  the  Library  a  copy  of 
every  new  book  received  by  them ;  and,  as  to  each  book  so  sent,  one  of  the 
professors  decided  whether  it  should  be  kept  or  not.  As  to  the  purchase 
of  other  than  new  books,  there  was  no  system  whatever;  and  such  books 
were  seldom  purchased  unless  for  some  special  reason ;  and  when  it  was 
decided  to  purchase  an}'  such  books  an  order  for  them  was  given  to  a 
bookseller.  Under  this  practice  the  library  seldom  received  any  acces- 
sions of  old  books." 


LIBRARY  1869-1907.  491 

the  book  stack  has  been  doubled  in  size,  and  has  about  60,000 
volumes  upon  its  shelves,  it  has  been  necessary  to  place  more  than 
40,000  volumes  in  outside  buildings.  The  present  size  of  the  col- 
lection exceeds  105,000  volumes,  a  gain  since  1870  of  about 
95,ooo."(i) 

Since  the  above  was  written,  the  Law  Library  has  been  removed 
to  Langdell  Hall,  and  is  now  located  in  a  specially  designed  stack 
with  glass  flooring,  and  with  no  combustible  material  in  any  way 
connected  with  it. 

The  following  table  gives  the  number  of  volumes  and  of 
pamphlets  in  the  Law  Library  in  each  year,  and  the  number  of 
yearly  additions  as  reported  by  the  College  Librarian  in  his 
Annual  Reports: 

No.  Vol-     No.  Pamph- 
umes  added     lets  added 

No.  No.         during  the       during  the 

Volumes.      Pamphlets.  year.  year. 

1877-78 16,907 

1878-79 17,500 

1879-80 19,909  2700  935 

1880-81 19,609  2,777  6°o 

1881-82 20,603  2,817  994 

(i)  As  already  described  in  Chapter  XVIII  by  vote  of  the  Corporation, 
Nov.  17,  1818,  many  books  were  at  various  times  transferred  from  the 
College  Library  to  the  Law  Library  for  use  of  the  law  students. 

In  1888,  the  question  of  the  return  of  these  books  to  the  College  Library 
in  Gore  Hall  was  raised  bv  request  of  members  of  the  Harvard  College 
Faculty,  and  a  statement  was  made  to  the  Corporation  with  regard  to  them 
and  to  their  return. 

On  Nov.  26,  1888,  the  Corporation  voted : 

"That  the  Librarian  of  the  College  Library  be  requested  to  send  to  the 
Corporation  a  memorial  for  communication  to  the  Law  Faculty  concerning 
the  books  which  were  transferred  some  years  ago  from  the  College  Library 
to  the  Library  of  the  Law  School,  some  of  which  are  required  for  use  at 
the  College  Library." 

After  a  good  deal  of  consideration  and  correspondence,  and  with  some 
opposition  on  the  part  of  the  Law  Faculty,  the  matter  was  finally  disposed 
of  by  the  return  of  the  books,  comparatively  few  in  number,  to  the  College 
Library  on  February  n,  and  March  31,  1896.  The  books  returned  were 
arranged  in  five  classes  as  follows : 

(1)  Books  given  by  Thomas  Hollis  as  appears  from  the  seal. 

(2)  Books  having  the  College  seal. 

(3)  Books  given  by  Theodore  Atkinson  as  appears  from  the  initials 
T.  A.  on  the  covers. 

(4)  Books  identified  by  the  College  shelf  marks. 

(5)  Books   answering  the   description   in   the  lists   referred  to   in   the 
statement   to  the   Corporation   but   incapable   of   identification   as   coming 
from  the  College  Library. 

Justin  Winsor  then  College  Librarian,  wrote  as  to  this  settlement,  "It  is 
a  pleasure  to  record  that  this  long  pending  question  has  been  finally  settled 
to  the  entire  satisfaction  both  of  the  College  Library  and  the  Law  School." 


492  HARVARD  LAW  SCHOOL. 

1882-83 ...  19,934  2,852  523 

1883-84 20,952  2,890  1,028 

1884-85 21,598  2,916  680 

1885-86 22.298  2,929  750 

1886-87 22,980  2,952  682 

1887-88 23,657  3,022  6,777 

1888-89 24,498  3,191  841 

1889-90 25,251  3,245  753 

1890-91 24,498  3,191  841 

1891-92 28,157  3,544  1,705 

1892-93.. 32,151  3,879  3,994 

1893-94 33>93i  3-9I7  1780 

1894-95 35'6i5  4,222  1,684                  305 

1895-96 37»909  4,326  3.228                  104 

1896-97 40,872  4,471  2,963                  145 

1897-98 44,340  5,241  3,468                  770 

1898-99 50,412  6,126  6,072                  881 

1899-00 56,621  6,606  6,209                  480 

1900-01 62,523  6,421  5,902                  324 

1901-02 67,582  6,825  5,059                  425 

1902-03 75,877  7,oo6  8,392                  440 

1903-04 ,.  81,808  8,750  6,061                1,853 

1904-05 88,307  8,926  6,540                  198 

*i905-o6 96,545  10,608  9,189               1,682 

1906-07 102,826  11,185  6,298  1,183 

From  the  above  it  will  be  seen  that  the  number  of  books 
increased  in  thirty  years  from  about  17,000  to  about  103,000,  or 
six-fold. 

The  following  table  shows  the  amount  spent  for  books  and 
binding  and  the  income  from  the  Law  Book  Fund,  as  stated  in 
the  Treasurer's  Annual  Reports  : 

Income 

Income          of  Law 

Amount  Amount          of  Law  School 

spent  for          spent  for  Book  Library 

books.  binding.  Fund.  Fund. 

1869-70 $1,538.05         $    390.03         

1870-71 2,719.62  7J9-69        

1871-72 2,576.83  967-44        

1872-73 2,678.05  870.88        

1873-74 4,141.60  853.56        

1874-75 ••    3,065.26  5II-45         

1875-76 3,!84-24  578.44        

1876-77 2,678.99  528.42        

*  Previous  to  this  year,  the  figures  are  given  for  the  year  ending  Sept. 
30.  In  1905-6,  and  subsequent  years,  the  figures  relate  to  the  year  ending 
July  31. 


LIBRARY  1869-1907. 


493 


1877-78 $2,260.00 

1878-79 i,97i,32 

1879-80 2,586.03 

1 880-8 1 1,792.01 

1881-82 2,477.45 

1882-83 2,926.50 

1883-84 2,825.00 

1884-85 2,358.53 

1885-86 2,695.06 

1886-87 2,188.00 

1887-88 2,143.04 

1888-89 2,690.00 

1889-90 2,345.17 

1890-91 4,003.75 

1891-92 4,741-34 

1892-93 9.447-09 

1893-94 4,772.io 

1894-95 3^598.77 

1895-96 8,552.27 

1896-97 10,938.93 

1897-98 7,402.31 

1898-99 11,585.15 

1899-1900 11,061.83 

1900-01 11,884.67 

1901-02 9,421.72 

1902-03 ii,7i9-45 

1903-04 1 1.947-6 ! 

1904-05 12,474.98 

1905-06 13,738.75 


j5  426.01 

186.75 

116.81 

yu 

$2,746.78 

1,655.40 

1,77,8.74 

1,661.89 

1,611.07 

1,601.05 

1,827.00 

1  ,962.66 

2,282.12 

2,411.58 

2,275.82 

2,125.12 

1,149.41 
1,364.92 
1,597-52 
964.76 

1,523.53 
2,666.13 

2,O84.2O 
2,008.84 
2,210.68 

2,665.00 

2,324.53 

2,209.99 
2,054.82 
2,158.26 
2,144.16 
2,209.99 
2,257.01 
2,200.58 
2,242,90 

2,313,43 
2,228.80 

$4,590.00 
4,560.00 
4,700.00 
4,800.00 
4,680.00 

4,770.00 

4,920.00 
4,740.00 


From  the  above,  it  appears  that  in  thirty-eight  years,  the  annual 
amount  spent  for  books  increased  from  $1,722  to  $13,738;  or 
eight-fold;  and  the  annual  amount  spent  for  binding  increased 
from  $390  to  $2.324 ;  or  over  six-fold. 

Some  of  the  features  in  which  especial  pride  is  taken  are  the 
following,  as  given  by  the  Librarian: 

1.  Completeness  of  the  collections  of  American,  English,  Irish, 
and  Scotch  Reports.     There  are  two  copies  of  all  the  American 
State  Reports,  and  in  many  cases  three  copies;  two  complete 
copies  of  the  Irish,  and  four  or  more  copies  of  nearly  all  the 
English  Reports. 

2.  An    unusually    complete    collection    of    English    Colonial 
Reports  and  Statutes. 

3.  American  Statute  Law,  almost  complete  since  1800,  and 
very  rich,  though  incomplete,  in  the  rare  and  costly  revisions  and 
session  laws  of  an  earlier  period. 


494  HARVARD  LAW  SCHOOL. 

4.  A  collection  of  Local  and  Private  Acts  of  Great  Britain 
complete  from  1820  to  1906.     This  collection  is  believed  to  be 
unique  so  far  as  this  country  is  concerned. 

5.  A  collection  of  trials,  civil  and  criminal,  remarkable  in  ex- 
tent.   It  includes  a  complete  set  of  the  Old  Bailey  Sessions  Papers, 
continued  by  the  Central  Criminal  Court  Papers,  covering  the 
period  from  1729  to  date. 

6.  A  very  full  collection  of  legal  periodicals. 

7.  A  large  collection  of  civil  and  foreign  law. 

8.  A  collection  of  Peerage  Cases,  purchased  in  1892.    At  that 
time  there  was  but  one  collection  superior  to  it  in  England. 

9.  The  early  Year  Books,  as  issued  year  by  year,  by  famous 
printers,  unsurpassed  by  any  known  collection. 

10.  The  quality  and  number  of  editions  of  the  standard  and 
famous  legal  treatises.     Among  such  works  may  be  mentioned 
Coke's  First  Institute,  in  every  English  edition,  from  the  first  in 
1628,  to  the  last  in  1832;  Blackstone's  Commentaries,  in  nearly 
every  edition,  some  49  in  number,  including  the  first ;  Complete 
Clerk,  five  editions;  St.  Germain's  Doctor  and  Student,  22  edi- 
tions ;  Trials  per  Pais,  9  editions ;  Fearne's  Contingent  Remain- 
ders, all  the  editions;  Fitzherbert's  New  Natura  Brevium,   13 
editions;  Glanville's  Laws  of  England,  6  editions;  Greenleaf's 
Evidence,  all  the  editions  except  the  second  and  third  of  vol.  i ; 
Kent's  Commentaries,  all  the  editions ;  Littleton's  Tenures,  34 
editions;  Old  Natura  Brevium,  9  editions;  Perkins's  Law  Con- 
veyancer, 17  editions ;  Sheppard's  Touchstone,  7  editions ;  Story's 
Works,  all  the  editions  of  every  treatise,  except  one  or  two. 

LIBRARIANS. 

There  have  been  only  three  permanent  Librarians  during  the 
Langdell  regime  and  since  1870 — William  Abbott  Everett,  Sept. 
30,  1870 — Sept.  29,  1871 ;  Abraham  Walter  Stevens,  Sept.  29, 
1871 — August  7,  1872 ;  and  John  Hines  Arnold,  appointed  August 
7,  1872.  (i) 


(i)  Mention  should  also  be  made  of  the  valuable  services  of  the 
Assistant  Librarian,  George  A.  Arnold,  who  died  Feb.  5,  1894,  of  whom 
Langdell  wrote  in  his  report  in  December,  1894 : 

"During  the  year  under  review,  the  School  met  with  an  irreparable  loss 
in  the  death  of  its  assistant-librarian,  George  A.  Arnold.  He  entered  the 
service  of  the  School  in  1872,  at  the  age  of  twenty-one,  and  remained  in  its 
service  continuously  until  his  death.  During  all  that  time  he  was  dis- 
tinguished for  his  faithfulness,  his  amiability,  and  his  distinterested  devo- 


LIBRARY  1869-1907.  495 

Of  the  latter,  nothing  need  be  added  to  Dean  Langdell's  remarks 
at  the  dinner  of  the  Harvard  Law  School  Association  in  1891, 
referring  to  the  making  of  the  catalogue.  "Fortunately  we  had 
a  Librarian  whose  devotion  to  the  School  knew  no  limits." 


tton  to  the  interests  of  the  School.  Soon  after  his  death  the  Corporation 
marked  its  sense  of  the  value  of  his  services  by  making  a  substantial  pro- 
vision for  his  family  out  of  the  surplus  income  of  the  School,  and  it  gives 
me  much  satisfaction  to  add  that  this  was  done  upon  the  unanimous  recom- 
mendation of  the  Faculty." 


CHAPTER  XLVIII. 
INFLUENCE  OF  THE  SCHOOL  AND  OF  THE  CASE  SYSTEM. 

It  was  the  success  of  the  Harvard  Law  School  under  the  Story 
regime  which  was  largely  responsible  for  the  growth  of  American 
law  schools  after  1830. 

In  1833,  the  Cincinnati  Law  School  was  founded  by  Timothy 
Walker,  a  student  of  the  Harvard  Law  School  in  1829-30.  In 
1836,  the  Carlisle  Law  School  was  founded  in  Pennsylvania.  In 
1842,  there  were  ten  law  schools  in  the  United  States,  having  19 
Professors  and  384  students.(i)  In  1843,  the  Yale  Law  School 
(though  founded  earlier)  first  granted  degrees.  In  1846,  the 
Louisville  Law  School  was  founded  in  Kentucky;  in  1847,  the 
Lebanon  Law  School,  in  Tennessee,  and  the  University  of  New 
Orleans  Law  School ;  in  1850,  the  University  of  Pennsylvania 
Law  School;  and  in  1851,  the  Albany  Law  School. 

Professor  Greenleaf  wrote  to  the  Harvard  Corporation  in  1847, 
calling  their  attention  to  "the  increase  in  attention  which  legal 
education  had  attracted  in  the  last  few  years" — the  placing  of  the 
Yale  Law  School  on  a  permanent  foundation,  and  new  schools  in 
New  York,  New  Jersey,  New  Orleans  and  elsewhere, — and  said : 
"Nothing  has  contributed  more  to  this  than  the  establishment  of 
the  Cambridge  School,  which  has  now  its  imitators  and  will  soon 
have  its  rivals  in  all  parts  of  the  Union." 

In  1858,  the  Columbia  Law  School  in  New  York  was  re-estab- 
lished. In  1859,  the  Law  Department  of  the  University  of 
Chicago  was  established  (later,  in  1873,  the  Union  College  of 
Law,  and  since  1882,  a  department  of  the  Northwestern  Univer- 
sity). In  the  same  year,  the  University  of  Michigan  Law  School 
was  started.  In  1865,  the  first  law  school  west  of  the  Mississippi 
River  was  founded — the  Iowa  Law  School  (later,  in  1868,  a 
department  of  the  State  University  of  Iowa).  In  1867,  the  St. 
Louis  Law  School  was  established. 

In  1891,  there  were  58  law  schools  with  6,073  students;  in 
1900,  96  schools  with  12,516  students,  and  in  1903,  104 

(i)  See  Western  Jurist,  Vol.  IV  (1870);  American  Almanac  for  1843. 
Professor  Joel  Parker  in  his  pamphlet  The  Law  School  of  Harvard  College 
(1871),  says  that  in  1848  there  were  only  9  law  schools. 


INFLUENCE  OF  SCHOOL.  497 

with  14,127  students. (i)  Professor  Simeon  E.  Baldwin  of  the 
Yale  Law  School  says  (2)  that  for  nearly  a  hundred  years  the 
history  of  legal  education  in  the  United  States  was  nearly 
stationary;  and  that  the  forward  movement  which  came  in  the 
i87o's  was  marked  by  three  great  events ;  the  creation  of  a  Com- 
mittee of  Legal  Education  by  the  American  Bar  Association, 
the  extension  of  the  term  of  study  for  a  degree  of  LL.B.  at 
Harvard  and  Boston  University,  from  two  to  three  years,  and 
the  publication  by  Langdell  of  the  first  case  book  which  was 
prepared  solely  for  use  in  law  school  instruction. 

Of  the  great  effect  upon  American  legal  history  of  the  last  of 
these  three  factors — the  Langdell  Case  System — the  following 
synopsis  will  give  ample  proof. 

While  the  publication  of  Langdell's  first  case  book — his  Cases 
on  Contracts — did  not  meet  with  a  cordial  reception  from  the  Bar 
in  general,  it  is  to  be  noted  that  the  first  review  which  appeared 
in  any  magazine  was  extraordinarily  complimentary,  the  Amer- 
ican Law  Review  (Vol.  V),  then  edited  by  O.  W.  Holmes  Jr.  and 
Arthur  G.  Sedgwick,  saying,  April,  1871 : 

Mr.  Langdell's  scheme  is  to  present  without  comment  the  series 
of  cases  by  which  an  important  principle  has  been  developed, 
arranged  in  order  of  time,  and  after  indicating  by  the  heading  of 
the  chapter  and  section  the  topic  to  be  illustrated,  to  leave  the  rest 
to  the  student.  Even  head  notes  are  wisely  omitted.  .  .  . 
The  chronological  arrangement,  though  it  may  sometimes  add  to 
the  labor  of  a  beginner,  we  have  found  to  be  most  instructive  and 
interesting.  Tracing  the  growth  of  a  doctrine  in  this  way  not 
only  fixes  it  in  the  mind,  but  shows  its  meaning,  extent  and  limits 
as  nothing  else  can.  We  must  mention  that  we  have  been  struck 
with  the  confirmation  here  afforded  to  a  remark  made  on  the  first 
page  of  this  volume  of  the  Law  Review,  that  Judges  know  how  to 
decide,  a  good  deal  sooner  than  they  know  why.  .  .  .  The 
only  criticism  that  has  occurred  to  us  is  that  the  cases  on  For- 
bearance, in  Section  4  of  the  chapter  on  Consideration,  are  collect- 
ed with  an  over-scrupulous  minuteness.  It  seems  as  if  the  desire 
to  give  the  whole  history  of  the  doctrine  had  led  to  putting  in 
some  contradictory  and  unreasoned  determinations  which  could 


(1)  See  Decade  of  Progress  in  Legal  Education,  by  E.  W.  Huffcut, 
Amer.  Bar  Assn.  Proc.,  Vol.  XX  (1902). 

See  especially  address  of  Henry  Wade  Rogers,  Amer.  Bar  Assn.,  Vol. 
XIII  (1897). 

Report  of  Committee  on  Legal  Education,  Amer.  Bar  Assn.  Proc.,  Vol. 
XXVI  (1903). 

(2)  See  The  Study  of  Elementary  Law,  by  S.  E.  Baldwin,  Yale  Law 
Journal,  Vol.  XIII  (1903). 


498  HARVARD  LAW  SCHOOL. 

have  been  spared.  Indeed,  one  surmises  that  a  skeptical  vein  in 
the  editor  is  sometimes  answerable  for  the  prominence  given  to 
the  other  side  of  what  is  now  settled.  But  very  likely  he  had 
deeper  reasons  and  is  right.  At  all  events,  we  advise  every 
student  of  the  law  to  buy  and  study  the  book.  If  he  does  not 
find  that  the  plan  of  it  is  both  original  and  instructive  we  shall 
be  mistaken. 

The  next  year,  the  American  Laiv  Review  (Vol.  VI)  said  in 
January,  1872: 

We  have  already  expressed  our  very  high  opinion  of  this  selec- 
tion in  noticing  the  first  part.  Further  reflection  and  examination 
have  confirmed  us  in  our  estimate.  ...  If  the  present  gener- 
ation is  to  improve  upon  the  text  books  of  the  last  out  easily  may 
it  must  work  in  the  direction  followed  by  Mr.  Langdell  by  dis- 
carding popular  and  adopting  legal  distinctions. 

We  do  not  agree  with  him,  however,  in  his  seemingly  exclusive 
belief  in  the  study  of  cases.  We  should  not  shut  our  eyes  to  a 
rapid  and  continuous  view  of  the  principle  deduced  from  them, 
and  this  can  only  be  got  in  the  text  books.  The  popular  prejudice 
that  a  case  lawyer  is  apt  to  want  breadth  has  something  in  it. 
Altho'  it  is  certain  that  the  opposite  danger  is  more  to  be  feared 
nowadays  in  America.  Moreover,  to  put  a  beginner  upon  the 
cases  without  aid  or  introduction,  seems  to  unnecessarily  increase 
difficulties  which  he  is  sure  to  find  great  enough  however  assisted. 
We  think  he  would  find  the  present  work  a  pretty  tough  piece  de 
resistance  without  a  text  book  or  the  assistance  of  an  instructor. 
The  students  of  the  Harvard  Law  School  are  to  be  congratulated 
that  they  have  the  aid  of  Mr.  Langdell's  learning  and  remarkable 
powers  in  their  task. 

And  in  the  same  volume,  in  a  review  of  Emory  Washburn's 
Lectures  on  the  Study  and  Practice  of  the  Law,  the  following 
condemnation  of  the  old  system  of  legal  education  was  made : 

We  do  not  make  this  objection  so  much  against  Mr.  Washburn 
as  against  the  whole  system  of  instruction  of  which  his  book  is 
a  part.  Both  in  England  and  America,  the  system  of  legal  educa- 
tion rests  upon  a  practical  not  a  philosophical  basis.  The  instruc- 
tion in  both  countries  consists  of  instilling  into  the  minds  of 
students  a  great  number  of  heterogeneous  and  often  incongruous 
rules  which  are  to  be  learned  by  rote  and  turned  to  account  when 
occasion  serves.  .  .  .  The  student  learns  for  instance  that 
according  to  the  English  law  children  of  the  half  blood  do  not 
inherit ;  but  he  does  not  learn  why. 

One  of  the  most  discriminating  contemporary  articles  on  the 


INFLUENCE  OF   SCHOOL,  499 

subject  of  the  Case  System  is  to  be  found  in  the  Harvard  under- 
graduate paper,  the  Magenta,  December  4,  1874 : 

It  will  not  be  denied  that  the  School  is  at  present  in  a  transition 
period ;  as  such,  it  deserves  every  allowance.  It  would  be  difficult 
to  state  to  what  extent,  or  in  what  variation,  the  new  system  will 
change  the  old  methods;  in  fact  the  reformers  admit  they  have 
no  definite  plan  as  to  extent,  but  they  think  as  all  who  have 
examined  into  the  matter  will  agree,  that  they  have  struck  a  rich 
vein  which  it  will  pay  to  work.  The  keynote  to  the  new  system 
seems  to  be  that  law  is  a  science ;  that  considered  as  a  science  it 
consists  of  certain  principles  or  doctrines ;  that  by  mastering  these 
doctrines  and  the  application  we  shall  know  what  the  law  should 
be  to  be  logical,  where  it  is  illogical  and  how  it  is  illogical.  It 
conceives  that  these  doctrines  can  be  most  advantageously  studied 
by  taking  a  series  of  cases  carefully  selected  from  the  reports, 
and  making  them  the  subject  of  study  and  instruction ;  and  hence 
the  new  system  is  to  select,  classify,  and  arrange  all  the  cases 
which  have  contributed  in  any  important  degree  to  the  growth, 
development,  or  establishment  of  any  of  the  essential  doctrines — 
to  study  the  law  systematically  from  its  original  sources.  The 
criticisms  made  here  will  not  take  issue  with  the  new  theory  of 
instruction  by  cases.  But  lack  of  time  and  experience  to  test  and 
impart  it  in  such  a  masterly  form,  method,  and  application,  as 
we  may  hope  to  see  the  future  produce,  we  believe,  should  pre- 
vent its  extensive  or  very  general  introduction  at  present. 

The  criticism  we  would  advance  is  that  the  present  curriculum 
is  unsatisfactory  in  that  it  does  not  treat  of  the  law  as  a  whole, 
and  neglects  to  give  that  general  instruction  which  is  very  desir- 
able and  necessary  for  a  student  at  this  period,  and  was  met  by 
Chancellor  Kent  in  his  famous  Commentaries  prepared  for  and 
delivered  to  classes  of  law  students  for  the  purpose  of  presenting 
to  them  a  complete  judicial  outline. 

Moreover,  too  much  time  is  devoted  to  a  single  branch,  and  no 
instruction  given  in  several  branches  of  no  less  importance.  As 
an  example,  in  the  important  subject  of  Equity,  a  whole  year  of 
careful  and  most  able  instruction  is  given  in  discovery  alone — 
a  single  division  of  Equity — one  that  is  wholly  unused,  while  a 
general  outline  of  the  subject  is  omitted. 

The  central  fault  in  the  system  is  not  that  the  theory  is  incor- 
rect, but  that  its  application  as  a  practical  matter  to  the  School 
and  the  study  of  the  law  is  not  as  yet  a  success,  and  a  modifica- 
tion seems  desirable. 

The  old  system  taught  by  deduction,  giving  principles,  and  then 
substantiating  them  by  cases  and  reasoning. 

The  new  system  teaches  by  induction  giving  cases  and  from 
these  extracting  principles. 

There  are  three  reasons  why  this  method  should  only  be  used 
to  a  limited  extent  in  a  law  school  first,  because  of  the  unnecessary 


500  HARVARD  LAW  SCHOOL. 

limit  of  human  life  to  three-score  and  ten;  secondly,  because  of 
the  inconvenient  and  undesirable  lack  of  experience  incident  to 
youth ;  thirdly,  because  an  institution  owes  it  to  the  public  to 
supply  the  market  as  well  as  to  elevate  the  market. 

Its  great  need  is  a  curriculum  better  adapted  to  the  time  and 
the  student. 

The  present  system  presupposes  that  the  student  has  a  well 
trained  mind,  has  four  years  at  least  to  devote  to  the  theory  of 
the  law  and  then  several  years  more  in  an  office  to  devote  to  the 
practical  part. 

A  more  favorable  article  appeared  in  the  Harvard  Advocate 
(Vol.  XIX)  on  February  19,  1875,  written  by  James  J.  Myers, 
(L.  S.  1869-73)  m  which  he  said: 

The  means  of  giving  thorough  legal  discipline  and  accurate 
knowledge  or  of  promoting  correct  methods  of  work  and  habits 
of  thought  acquired  by  old  lawyers  by  patient  study  of  cases, 
these  things  the  Harvard  Law  School  adopting  the  same  methods, 
.  .  .  aims  to  give  to  its  students  at  the  very  beginning  of  their 
career.  ...  A  second  prominent  feature  is  the  attention 
given  to  the  study  of  Common  Law  Pleading.  Other  important 
features  may  be  mentioned  in  the  number  and  excellence  of  its 
law  clubs  and  the  high  order  of  work  done  in  them ;  the  earnest 
and  enthusiastic  spirit  of  work  which  animates  nearly  the  whole 
school,  rilling  the  Library,  day  and  evening,  with  zealous  workers. 

In  1877,  when  Langdell's  Summary  of  Equity  Pleading  appear- 
ed, the  American  Law  Review  (Vol.  X)  said:  "This  is  in  our 
opinion  one  of  the  most  remarkable  books  which  has  ever  been 
written  upon  a  legal  subject  by  an  American  author  ...  it 
could  only  have  been  written  by  a  great  lawyer  and  every  page 
shows  the  hand  of  a  master  such  as  has  rarely  appeared  in  our  lit- 
erature." 

On  the  other  hand,  the  Southern  Law  Review  (Vol.  Ill,  N.  S.) 
published  a  distinctly  unfavorable  review,  containing  the  follow- 
ing criticism  characteristic  of  those  who  misunderstood  Langdell's 
views  :  "Why  the  study  of  Equity  Pleading  at  Harvard  University 
in  1877  should  be  limited  to  the  system  as  it  existed  prior  to  1827 
(the  end  of  Lord  Eldon's  chancellorship)  is  not  explained." 

The  American  Law  Review  (Vol.  XIV),  two  years  later, 
( 1879)  paid  an  enthusiastic  tribute  to  Langdell  in  a  review  of  the 
second  edition  of  his  Contracts : 

It  is  hard  to  know  where  to  begin  in  dealing  with  this  extra- 
ordinary production  equally  extraordinary  in  its  merits  and  its 


INFLUENCE  OF   SCHOOL.  501 

limitations.  No  man  competent  to  judge  can  read  a  page  without 
at  once  recognizing  the  hand  of  a  great  master  and  every  line  is 
compact  of  ingenious  and  original  thought.  Decisions  are  recon- 
ciled, which  those  who  made  them  meant  to  be  opposed,  and  drawn 
together  by  subtle  lines  which  were  never  dreamed  of  before  Mr. 
Langdell  wrote.  It  may  be  said  without  exaggeration  that  there 
cannot  be  found  in  the  legal  literature  of  this  country  such  a  tour 
de  force  of  patient  and  profound  intellect  working  out  original 
theory  through  a  mass  of  detail,  and  evolving  consistency  out  of 
what  seemed  a  chaos  of  conflicting  actions. 

In  this  same  year  (1879),  the  Southern  Law  Reiriew  in  review- 
ing the  second  edition  of  Langdell's  Cases  on  Contracts  said: 

We  never  could  clearly  appreciate  why  this  collection  (now 
for  the  first  time  issued  in  two  volumes),  and  Professor  Lang- 
dell's  corresponding  collection  of  Cases  on  Sales  were  published. 
He  appears  to  have  had  a  hobby,  and  this  hobby  that  the  law 
ought  to  be  taught  exclusively  by  means  of  cases  in  some  form. 

.  .  .  We  suppose  we  must  accept  a  reappearance  of  the 
second  edition  of  this  work  without  much  change  as  an  evidence 
that  Professor  Langdell's  original  views  are  still  persisted  in. 
There  is  just  as  much  sense  in  endeavoring  to  instruct  students 
in  the  principles  of  law  by  the  exclusive  reading  of  cases  as  there 
would  be  in  endeavoring  to  instruct  the  students  of  the  West 
Point  Military  Academy  in  the  art  of  war  by  compelling  them  to 
read  the  official  reports  of  all  the  leading  battles  which  have  been 
fought  in  the  world's  history.  ...  In  our  judgment,  the 
chief  value  of  the  present  work  consists  in  the  Summary  which 
Professor  Langdell  has  appended  to  the  second  volume.  We 
cannot  doubt  that  it  is  a  valuable  review  of  the  matter  presented 
in  the  cases.  At  a  glance  we  can  see  that  it  performs  one  im- 
portant office :  it  points  out  which  of  them  are  overruled ! 

In  1881,  this  criticism  was  the  subject  of  an  admirable  and 
vigorous  answer  by  a  writer  in  the  Southern  Law  Reznezu  (Vol. 
VI),  who  said,  "there  is  an  obstinacy  in  learning  more  inveterate 
than  in  ignorance.  Ignorance  can  be  instructed  and  learning  can- 
not." 

In  1882,  however,  reviewing  Ames'  Cases  on  Bills  and  Notes, 
the  Southern  Law  Revieiv  (Vol.  VIII)  showed  that  the  Case  Sys- 
tem was  being  accepted  by  the  profession : 

The  student  gets  a  clear  conception  of  the  history  and  growth 
of  the  law  both  in  England  and  the  United  States  and  is  so  en- 
abled to  master  more  thoroughly  the  principles  and  reasons  that 
underlie  the  same.  And  herein  especially  lies  the  chief  merit  of 


502  HARVARD  LAW  SCHOOL. 

this  system  of  legal  education  introduced  and  pursued  with  such 
gratifying  success  in  Harvard  Law  School — this  study  of  cases 
instead  of  treatises.  The  student  is  led  to  examine  and  analyze 
the  cases  as  he  will  be  bound  to  when  in  active  practice ;  in  doing 
this  he  learns  the  law  by  tracing  its  history  and  growth,  becomes 
familiar  with  the  cases,  with  the  methods  of  legal  reasoning  em- 
ployed by  counsel  and  judges  and  gradually  forms  opinions  of  his 
own  as  he  progresses  in  respect  of  the  soundness  of  the  decisions 
which  he  studies.  The  value  of  such  training  is  very  great. 

Meanwhile,  the  first  physical  results  of  the  introduction  of  the 
Case  System  and  of  the  somewhat  heated  feeling  and  strong 
opposition,  aroused  among  Boston  lawyers,  by  the  change  in 
methods  at  Harvard,  was  the  establishment  of  a  rival  law  school 
in  Boston. 

In  1872,  the  Trustees  of  Boston  University  (founded  in 
1869)  determined  to  establish  a  law  department ;  and  George  S. 
Hillard,  a  student  of  the  Harvard  Law  School  under  Story 
(1830-32),  and  a  distinguished  member  of  the  Suffolk  Bar,  was 
made  Dean.  The  reasons  for  the  founding  of  this  School  were 
mildly  stated,  in  1889,  as  follows(i)  : 

It  has  long  been  a  settled  rule  in  legal  education  that  a  thorough 
and  systematic  knowledge  of  the  law  can  best  be  obtained  by 
attendance  upon  lectures,  but  in  the  adoption  of  that  principle  and 
in  discouraging  office  study  alone  the  profession  went  too  far, 
and  a  necessary  reaction  took  place;  and  a  feeling  that  the  best 
system  embraced  lectures  in  connection  with  the  practical  work 
of  an  office  resulted.  ...  At  the  time  the  Boston  Law  School 
was  established,  it  was  a  fact  that  many  students  who  would  have 
liked  to  attend  some  law  school  were  deterred  from  so  doing  by 
the  fact  that  it  rendered  office  work  impracticable,  and  did  not 
supply  the  place  of  such  office  experience. 

It  was  further  felt  that  the  instruction  at  the  nearest  law 
school,  namely  at  Cambridge,  was  particularly  technical  and  his- 
torical, and  when  completed,  necessitated  an  apprenticeship  in 
some  good  attorney's  office. 

A  more  graphic  and  partisan  view  of  the  founding  of  the  new 
School  was  given  by  James  Schouler,  in  the  same  year (2)  : 

What  chagrin  these  last  men  of  the  old  regime  Washburn  and 
Parsons  felt,  I  well  know. 


(1)  Boston  University  Law  School,  by  George  R.  Swasey,  Green  Bag, 
Vol.  I  (1889). 

(2)  Cases  without  Treatises,  by  James  Schouler,  Amer.  Law  Review, 
Vol.  XXIII   (1889). 


INFLUENCE  OF   SCHOOL.  503 

But  criticism  was  thrown  away ;  for  the  head  administrator  of 
the  University,  a  specialist  in  exact  sciences  was  a  man  of  de- 
termination. Alumni  who  criticised  were  frozen  out  of  the  con- 
fidence of  the  University ;  and  they  who  doubted  were  damned. 
Years  passed  away.  A  profession  always  conservative  in  its 
habits  did  not  take  warmly  to  these  new  methods.  .  .  .  The 
rumor  spread  abroad  that  young  men  were  fitted  not  for  the  Bar 
but  for  membership  in  the  Antiquarian  Society.  .  .  .  Other 
law  schools  in  the  country  which  preferred  to  teach  its  students 
what  to  do  and  how  to  do  it  outstripped  this  historical  institution 
in  point  of  numbers,  and,  one  might  add,  in  reputation  besides. 
One  of  these  which  was  founded  in  a  neighboring  city  (Boston) 
called  in  some  of  the  rejected  advisers  of  Harvard  University, 
mingled  the  young  and  old  in  its  faculty,  combined  whatever 
methods  of  instruction  had  proved  useful  and  without  gifts  or 
money  funds  to  strengthen  it,  passed  the  Harvard  Law  School  in 
numbers.  This  situation  made  anxiety  at  Cambridge. 

Hillard  called  into  the  service  of  the  School  an  extraordinarily 
eminent  group  of  lecturers,  Francis  Wharton,  Benjamin  R.  Cur- 
tis, Henry  W.  Paine,  Edmund  H.  Bennett,  Benjamin  F.  Thomas, 
Otis  P.  Lord,  Melville  M.  Bigelow,  Edward  L.  Pierce,  William 
B.  Lawrence,  Dwight  Foster,  Robert  C.  Pitnam,  and  Chester  I. 
Reed. 

The  School  opened  with  60  students.  In  1875  and  1876,  Nich- 
olas St.  John  Green  acted  as  Dean ;  and  in  the  latter  year,  Ed- 
mund H.  Bennett  became  Dean.  For  many  years,  and  until  the 
principles  of  the  Langdell  System  became  firmly  fixed,  and  ac- 
cepted by  a  large  proportion  of  the  Bar,  the  Boston  University 
Law  School  was  a  strong  rival  to  the  Harvard  School.  Since 
1890,  however,  it  has  ceased  to  be  a  rival  in  the  obnoxious  sense 
of  the  word.  Each  School  now  has  its  particular  field  and  scope, 
each  recognizing  the  position  and  usefulness  of  the  other ;  and 
the  Boston  School  has  gradually  adopted  the  Langdell  System, 
with  modifications. 

The  years  1871  to  1886  were,  however,  as  already  described, 
years  of  doubt  as  to  the  permanence  of  the  Langdell  doctrine 
which,  though  firmly  fixed  at  Harvard,  was  looked  at  askance  by 
other  law  schools.  Meanwhile  Langdell  never  uttered  a  word  of 
defence  or  propaganda  of  his  views.  He  allowed  them  to  make 
their  way  absolutely  on  their  own  merits.  Convinced  that  they 
were  right,  he  was  equally  convinced  that  others  would  eventually 
share  in  his  belief. 

In  1878,  the  American  Bar  Association  was  founded ;  and  from 


504  HARVARD  LAW  SCHOOL. 

that  date,  there  began  a  systematic  consideration  of  the  subject 
of  legal  education  by  the  Bar  of  the  country. 

A  Committee  on  Legal  Education,  appointed  by  the  Association 
in  1878,  consisting  of  Carleton  Hunt  of  Louisiana,  Chairman, 
Henry  Stockbridge,  and  Edmund  H.  Bennett,  made  an  elaborate 
Report,  in  i879,(i)  giving  a  history  of  law  schools  in  Europe  and 
also  expressing  its  views  as  to  the  proper  methods  of  instruction. 
Slight  attention  was  paid  to  the  Case  System  in  this  Report ;  and 
the  Committee  stated  that  in  its  opinion  the  proper  method  of 
instruction  was,  "by  lectures  and  expositions  with  frequent  re- 
capitulations and  summaries,"  and  by  an  increase  in  the  number 
of  competent  tutors,  examiners,  and  scientific,  practical  instruc- 
tors to  aid  the  professors.  It  laid  much  stress  on  the  value  of 
Moot  Courts,  and  also  on  the  necessity  of  written  examinations 
for  degrees — this  last  suggestion,  being  a  hearty  endorsement  of 
Langdell's  theory  in  this  respect. 

After  this  Report  of  1879,  the  American  Bar  Association  paid 
practically  no  attention  to  the  subject,  until  1890. 

Meanwhile,  the  organization  of  the  Harvard  Law  School  Asso- 
ciation and  the  speeches  at  its  first  dinner,  in  1886,  had  had  an 
immense  effect  in  spreading  through  the  country  an  exposition  of 
Langdell's  views. (2) 

Discussion  of  the  merits  of  the  case  system,  pro  and  con,  took 
place  in  the  magazines  and  at  meetings  of  the  various  State  and 
County  Bar  Associations. 

Three  articles  in  the  American  Laiv  Review  in  1888-89(3)  con- 
tributed greatly  to  a  better  understanding  of  the  fundaments  of 
the  system — one  by  J.  B.  Bishop  on  The  Common  Laiv  as  a  Sys- 
tem of  Reasoning,  in  which  he  showed  his  misunderstanding  of 
the  Case  System  as  actually  practised  as  follows : 

The  method  is  sometimes  inaccurately  termed  the  teaching  of 
the  law  by  cases — but  the  use  of  decided  cases  in  elementary  in- 
struction has  always  been  common  and  I  believe  universal,  yet 

(r)     See  Atner.  Bar  Assn.  Proc.,  Vol.  II  (1879). 

(2)  James  Schouler  in  Amer.  Law  Review,  Vol.  XXIII  (1889),  said: 
"The  situation  made  anxiety  at  Cambridge.     The  immense  machinery  of 

the  great  University  Commemoration  in  1886  was  used  to  bring  up  the 
Harvard  Law  School  once  more ;  the  long  and  splendid  roll  of  the  Alumni 
of  that  School  was  exposed;  and  by  means  of  a  new  association  of 
graduates  and  a  prodigious  expenditure  of  money,  a  sort  of  revival  was 
started." 

(3)  See  American  Laiv  Review,  Vol.  XXII  and  Vol.  XXIII 


INFLUENCE  OF   SCHOOL.  505 

not  heretofore  commonly  practised  to  the  exclusion  of  such  books 
as  Blackstone's  Commentaries,  Kent's  Commentaries,  Greenleaf 
on  Evidence  and  Story's  Equity  Jurisprudence.  So  that  the  new 
method  consists  simply  in  banishing  books  like  these.  The  brief 
explanations  of  the  reason  of  the  change  demonstrate  that  while 
the  University  does  not  choose  to  pronounce  in  words  the  Com- 
mon Law's  utter  lack  of  jurists,  it  believes  it  to  have  none,  and 
adapts  its  curriculum  to  this  belief. 

An  answer  to  this  article  was  made  by  Professor  John  C.  Gray 
in  an  article,  entitled  Cases  and  Treatises;  and  a  rejoinder  ap- 
peared in  the  next  volume  of  the  Re*<.*ieiv,  entitled  Cases  Without 
Treatises,  by  James  Schouler,  in  which  he  said  that  he  was  "glad 
to  see  the  Harvard  Law  School  fairly  on  the  defensive  at  last  as 
concerning  its  methods  of  instruction." 

An  able  article  in  defence  of  the  Harvard  Law  School  system 
by  Sidney  G.  Fisher  appeared  in  the  American  Law  Register,  in 
i888.(i) 

In  1890,  the  Committee  on  Legal  Education,  of  the  American 
Bar  Association,  consisting  of  Professor  William  G.  Hammond, 
George  M.  Sharp  and  Professor  Henry  Wade  Rogers,  made  a 
Report,  in  which  they  said  that  they  hesitated  "to  break  the  record 
of  masterly  inactivity  formed  by  the  unremitting  efforts  of  their 
predecessors  for  at  least  ten  successive  years";  they  considered 
the  methods  of  teaching  in  vogue,  and  in  a  brief  sentence  they  pre- 
sented the  very  evil  which  the  Langdell  methods  were  intended  to 
cure.  "The  defects  of  the  present  method  may  be  summed  up ; 
they  do  not  educate,  they  only  instruct". (2) 

The  next  year,  1891,  the  same  Committee  (with  the  addition  of 
George  O.  Shattuck),  in  their  Report,  recognized  the  conflict 
which  was  going  on  between  the  adherents  of  the  various 
methods  of  legal  instruction,  but  said  that  it  was  "beneath  the 
dignity  of  the  Association  to  take  part  however  incidentally  in 
controversies  which  necessarily  must  become  more  or  less  per- 
sonal. .  .  .  Time  and  experience  will  furnish  the  final  test 
by  which  all  such  methods  must  be  tried." 

They  considered  the  subject,  however,  somewhat  in  detail  in  a 
non-partisan  way;  recommended  the  employment  of  professors 


(1)  The  Teaching  of  Lau1  bv  the  Case  S \stem,  by  Sidney  G.  Fisher, 
Amcr.  Law  Register,  Vol.  XXVII  (1888). 

(2)  Amer.  Bar  Assn.  Proc.,  Vol.  XIII   (1890). 


506  HARVARD  LAW  SCHOOL. 

who  are  practitioners  as  well  as  of  those  who  devote  all  their  time 
to  teaching ;  and  finally  said  ( I )  : 

The  Committee  would  strongly  recommend  that  every  teacher 
in  a  law  school  should  present  an  outline  of  the  subject  taught 
in  a  printed  form  which  the  students  may  master  as  thoroughly 
as  possible,  and  should  occupy  the  hours  spent  with  the  class  in 
such  references  and  illustration  as  would  aid  them  in  clearly  com- 
prehending these  fundamental  principles  and  in  sufficient  examin- 
ations to  convince  himself  that  they  have  done  so.  ... 

The  use  of  cases  in  illustration  of  these  principles  is  of  un- 
questionable service  .  .  .  but  we  deprecate  the  use  of  cases 
done  without  reference  to  the  fundamental  principles  of  the  law 
of  which  we  believe  them  to  be  in  all  cases  the  application. 

The  Report  of  United  States  Commissioner  of  Education  in 
189091  contained  a  full  bibliography  of  Legal  Education. 

Meanwhile  the  teaching  of  the  Case  System  had  already  been 
started  in  a  law  school  outside  of  Harvard.  Eugene  Wambaugh, 
a  graduate  of  the  Harvard  Law  School  in  1880  (now  Professor 
there)  had  been  made  Professor  of  Law  in  the  State  University 
of  Iowa,  and  had  introduced  the  system  in  his  courses  during  his 
term  of  service  1889-92 ;  and  the  Dean  of  the  School,  Emlen  Mc- 
Clain,  became  an  enthusiastic  disciple. 

The  next  law  school  to  adopt  the  system  was  that  of  Columbia 
University,  where  Professor  William  A.  Keener,  who  resigned 
from  the  Harvard  Law  School  as  Professor  in  March,  1890,  and 
was  appointed  Professor  at  Columbia  in  September,  1890,  intro- 
duced it  in  his  own  courses,  with  the  approbation  of  President 
Seth  Low ;  and  in  the  following  year,  Professor  Dwight,  who 
had  been  Dean  for  many  years,  resigned,  and  Keener  became 
Dean.  Most  of  the  old  teachers  left  the  School,  and  their  places 
were  filled  by  Keener  with  men  more  or  less  in  sympathy  with  his 
own  views. 

In  the  Harvard  Laiv  Review  for  September,  1891,  appeared 
an  editorial  on  The  Increasing  Influence  of  the  Langdell  Case 
System  of  Instruction,  referring  to  its  introduction  at  Columbia : 

Although  the  reading  of  cases  has  not  been  disregarded,  the 
manner  of  teaching  law,  at  Columbia,  has  been  mainly  by  means 
of  lectures  and  the  study  of  treatises.  An  enlarged  conception  of 
what  the  training  of  a  law  student  should  be  has  now  led  to  the 
formation  of  a  plan  for  a  reorganized  law  school  by  the  trustees 

(i)     Amer.  Bar  Assn.  Proc.,  Vol.  XIV  (1891). 


INFLUENCE   OF   SCHOOL.  507 

of  that  University.  The  new  methods  of  the  Columbia  School 
for  the  year  1891-92  are  outlined  in  the  formal  announcement 
lately  published,  but  they  are  not  explained  in  detail.  It  is  be- 
lieved, however,  that  the  practice  which  that  School  has  followed 
ever  since  Professor  Dwight  became  its  head  is  now  discarded, 
and  that  the  Harvard  system  will  serve  as  its  model  in  the  future. 

The  introduction  of  the  Case  System,  with  some  slight  modifi- 
cations, in  the  very  stronghold  of  Dean  Theodore  Dwight, 
who  had  been  its  steady  opponent,  was  a  great  triumph.  Within 
two  years,  it  proved  its  own  value ;  and  in  1893,  a  writer  in  the 
Columbia  Law  Times  said :  "After  two  years  experience  with  the 
new  course,  the  student  body  of  Columbia  are  unequivocal  in  its 
favor.  To  give  the  student  who  has  the  intelligence  requisite 
for  the  successful  lawyer,  not  only  the  substantive  rudiments  but 
that  analytic  feeling  which  distinguishes  the  attorney  from  his 
counterfeit  is  an  object  of  our  School." 

And  the  Columbia  Lazv  Times  itself  said  editorially: 

It  is  really  a  matter  of  no  little  wonder  that  the  introduction 
of  the  "new  system"  as  it  is  called,  should  have  excited  so  much 
opposition  and  criticism.  The  "change"  was  nothing  more  or  less 
than  the  application  to  the  study  of  law  of  the  modern  scientific 
methods  of  work  in  the  field  of  higher  education.  It  was  the  sub- 
stitution of  the  inductive  for  the  deductive  method  of  study  on  a 
subject  eminently  suited  to  such  an  application. 

In  1892,  the  Committee  on  Legal  Education  (comprising  the 
same  lawyers  as  in  1891,  together  with  J.  Hubley  Ashton)  re- 
ported to  the  American  Bar  Association  on  the  three  year  course 
for  law  school  degrees,  and  also  considered  the  Case  System, 
saying  that  it  necessarily  "implied  that  the  cases  have  been  chosen 
and  arranged  for  him  (the  student)  by  a  teacher  who  knows  what 
he  desires  to  accomplish  and  how  he  is  to  effect  it.  ...  It  is 
apparent  .  .  .  that  the  essential  idea  in  the  (Case)  System  is 
the  exclusive  use  of  cases  in  teaching  law.  The  colloquy  or  dis- 
cussion of  cases,  described  by  Professor  Keener,  is  common  to 
all  systems  of  instruction,  and  is  practised  to  a  great  extent  in 
connection  with  text  books,  and  lectures."(i) 

In  1893,  the  American  Bar  Association  devoted  considerable 
time  at  its  annual  meeting  (Vol.  XVI)  to  the  consideration  of 
the  subject,  three  important  papers  being  read — Existing  Ques- 


(l)     Amer.  Bar  Assn.  Proc.,  Vol.  XV  (1892). 


5o8  HARVARD  LAW  SCHOOL. 

tions  of  Legal  Education,  by  Austin  Abbott;  Legal  Education, 
by  Professor  Samuel  Williston ;  and  The  Best  Method  of  using 
cases  in  Teaching  Law,  by  Professor  Emlen  McClain. 

In  1894,  the  following  papers  were  read  before  the  American 
Bar  Association  (Vol.  XVII)  of  interest  on  this  subject — Some 
Standards  of  Legal  Education  in  the  West,  by  John  D.  Lawson ; 
Legal  Education  of  Undergraduates,  by  Woodrow  Wilson ;  Law 
School  Libraries  and  How  to  Use  Them,  by  Simeon  E.  Baldwin ; 
A  Principle  of  Orthodox  Legal  Education,  by  John  H.  Wigmore ; 
Some  of  the  Limitations  and  Requirements  of  Legal  Education  in 
the  United  States,  by  Edmund  Wetmore ;  The  Inductive  Method 
in  Legal  Education,  by  William  A.  Keener — the  latter  paper  being 
the  fullest  and  most  authoritative  presentation  of  the  Case  System 
which  had  yet  been  made  to  the  Association.  A  valuable  Histori- 
cal Sketch  of  American  Law  Schools  was  also  read  by  Professor 
Henry  Wade  Rogers. 

In  1895,  (Vol.  XVIII),  the  Report  of  the  Committee  on  Legal 
Education,  and  the  discussion  of  the  Case  System  which  followed, 
taken  part  in  by  Professor  James  B.  Thayer  and  other  Professors, 
were  of  great  value  in  clearing  up  the  situation. 

In  1895,  John  F.  Dillon  wrote :  "The  great  test  of  the  teacher 
is :  Does  he  inspire  enthusiasm  in  the  student  ?  Does  he  set  him 
thinking?  Does  he  make  him  work?  If  so,  the  particular  mode 
in  which  he  accomplishes  this  is  comparatively  unimportant.  The 
discussion  concerning  the  competing  systems  of  'instruction  by 
case  law'  and  'instruction  by  text  books'  has  already  had  one 
beneficial  result,  and  that  result  is  to  show  that  neither  of  these 
methods  should  be  the  exclusive  method."(i) 

From  1896  to  1902,  little  attention  was  paid  to  the  subject  by 
the  American  Bar  Association.  The  Case  System,  however,  was 
making  its  way  in  many  law  schools,  especially  in  the  West. 

As  early  as  1892,  the  great  material  success  of  the  Harvard 
Law  School  inspired  a  demand  for  graduates  of  the  School  as 
teachers ;  and  in  that  year,  the  Law  School  of  the  Western  Re- 
serve University  was  formed  on  Harvard  lines,  laid  down  by  Pro- 
fessor Wambaugh.  In  1893,  John  Henry  Wigmore,  a  graduate 
of  the  Harvard  Law  School  in  1887,  who  had  been  Professor  of 
Anglo-American  Law  in  Fukuzawa  University,  Tokio,  Japan, 
became  a  Professor  in  the  Northwestern  University  in  Chicago, 


(i)     Laws  and  Jurisprudence  of  England  and  America,  by  J.  F.  Dillon 
(1895). 


INFLUENCE   OF   SCHOOL.  509 

introducing  there  the  Case  System,  which  was  adopted  with  en- 
thusiasm by  its  Dean  Nathaniel  Abbott.  Other  teachers,  notably 
Professor  Julian  Mack,  a  graduate  of  the  same  class  as  Wigmore, 
taught  the  system  there. 

In  the  annual  report  of  the  University  of  Cincinnati  for  1896, 
giving  an  account  of  the  foundation  of  a  law  department,  there 
appeared  the  following  report  of  the  Dean  of  the  School,  William 
H.  Taft,  then  Judge  of  the  Circuit  Court  of  the  United  States : 

In  the  conduct  of  the  Law  School,  the  Faculty  decided  that  its 
wisest  course  would  be  to  follow  as  closely  as  circumstances 
would  permit,  the  course  and  methods  of  study  prevailing  at  the 
Harvard  Law  School.  The  Harvard  Law  School  is  undoubtedly 
the  most  thorough  and  satisfactory  school  for  the  study  of  Anglo- 
American  law  in  the  world  and  we  would  set  before  us  no  higher 
standard.  It  was  resolved  to  admit  no  applicant  to  our  school 
who  was  not  a  graduate  of  a  high  school  or  an  academy  of  equiva- 
lent standing  or  who  could  not  pass  an  examination  snowing  pro- 
ficiency in  those  branches  of  a  high  school  education  important  as 
a  basis  for  the  study  of  law.  No  one  is  now  admitted  to  the  Har- 
vard Law  School  who  is  not  the  graduate  of  a  college,  but  we 
did  not  deem  it  wise  in  a  new  school  to  make  the  requirements 
quite  so  high. 

In  the  study  of  Contracts,  Torts  and  Property,  the  instructors 
have  adopted  the  Case  System  as  it  is  pursued  at  Harvard  and  the 
same  books  of  select  cases  are  used  by  the  students.  .  .  . 
For  the  first  year's  work  we  follow  the  Harvard  curriculum 
exactly.  .  .  .  The  above  course  was  selected  from  the  larger 
one  at  Harvard  after  a  full  consultation  by  correspondence  with 
the  members  of  the  Harvard  Law  Faculty.  It  may  not  be  im- 
proper for  us  at  this  point  publicly  to  acknowledge  the  very  great 
assistance  we  have  derived  .  .  .  from  that  Faculty  and  to 
tender  our  thanks  for  the  same. 

In  1902,  the  Law  Department  of  the  University  of  Chicago 
was  started ;  and  the  interesting  experiment  was  tried  of  inviting 
one  of  the  Harvard  Law  School  Professors,  Joseph  H.  Beale,  Jr., 
to  become  the  first  Dean,  and  to  initiate  the  Harvard  system 
there.  Professor  Ernest  Freund  thus  describes  the  event(i)  : 

When  in  the  early  part  of  the  year  1902  the  long-cherished 
project  of  establishing  a  law  school  as  a  part  of  this  University 
was  about  to  be  carried  out,  and  methods  and  men  were  being 
considered  for  the  work  of  organization,  our  eyes  not  unnaturally- 
turned  toward  the  most  famous  and  most  successful  law  school 


(i)     University  Record,  Vol.  IX,  June,  1904. 


5io  HARVARD  LAW  SCHOOL. 

of  the  English-speaking  world.  It  was  not  chiefly  or  primarily 
the  method  of  instruction  which  had  become  identified  with  the 
name  of  Harvard  that  challenged  admiration — on  that  point  the 
attitude  of  the  University  was  that  of  the  open  mind;  but  the 
spirit  of  earnestness  and  devotion  to  their  chosen  work  on  the 
part  of  the  students,  for  which  that  School  was  distinguished,  it 
was  deemed  essential  to  transplant  and  reproduce  in  the  School 
that  was  to  be  organized  here.  That  spirit,  we  knew,  could  not 
be  altogether  the  result  of  a  system,  but  must  have  been  due  to  the 
men  who  administered  the  system. 

It  was  therefore  decided  at  once  and  by  common  consent  to  in- 
vite one  of  these  men — one  of  the  younger  men,  but  a  ripe  scholar 
and  known  to  be  capable  of  inspiring  his  students  with  enthusiasm 
— to  invite  Mr.  Beale  to  assume  the  Deanship  of  the  School  of 
Law. 

The  qualification  with  which  this  invitation  was  accepted  was 
in  a  manner  unique  and  unprecedented :  the  University  secured 
the  services  of  Mr.  Beale  only  for  a  term  of  two  years,  and  cir- 
cumstances made  it  necessary  that  part  of  this  time  should  be 
spent  by  him  out  of  residence.  Still  I  am  sure  that  all  who  are 
connected  with  the  Law  School  are  agreed  that  experience  has 
demonstrated  the  wisdom  of  even  this  arrangement — an  arrange- 
ment which  illustrated  in  a  striking  manner  the  spirit  of  good- 
will and  co-operation  existing  between  the  great  institution  of  the 
East  and  her  younger  rival  in  the  West. 

We  are  glad  to  have  had  this  much  of  Mr.  Beale,  and  we  are 
sorry  to  see  him  part  from  us.  This  is  the  end  of  his  two  years' 
term,  and  his  separation  from  the  School  closes  the  first  and 
preliminary  chapter  of  its  history.  This  is  not  the  time  or  place  to 
speak  of  results  or  prospects ;  but  I  may  be  permitted  to  give 
expression  to  the  gratitude  which  we  feel  for  the  help  that  he  has 
given  us,  and  to  the  gratification  which  has  come  from  co-oper- 
ating, though  for  all  too  brief  a  period,  with  one  whose  freshness 
and  vigor  of  mind,  and  whose  love  of  sound  law,  has  been  a  con- 
stant stimulus  and  inspiration  to  his  colleagues  and  his  students. 

In  this  same  year,  1902,  thirty-two  years  after  Langdell  had 
introduced  the  Case  System  at  Harvard,  its  progress  was  summed 
up  by  Professor  Ernest  W.  Huffcut,  of  Cornell,  in  an  address 
before  the  American  Bar  Association.  ( i )  Of  the  98  law  schools 
reporting  to  him,  he  stated,  12  had  unequivocally  adopted  the  Case 
System ;  34  had  unequivocally  adopted  the  text  book  system  or 
the  text  book  and  lecture  system;  33  employed  a  combination 
of  the  Case  System  with  use  of  text  books  and  lectures;  15 


(i)     A   Decade  of  Progress  in  Legal  Education,  by   E.   W.   Huffcut, 
Amer.  Bar  Assn.  Proc.,  Vol.  XXV  (1902). 


INFLUENCE   OF   SCHOOL.  511 

announced  the  use  of  both  text  books  and  cases  for  regular  study 
and  discussion.    And  he  summed  up  the  situation  as  follows : 

Many  schools  seem  to  think  it  necessary  to  explain  in  great 
detail  the  reasons  for  the  adoption  of  a  practically  exclusive 
method  or  for  the  combination  of  varying  methods,  and  this  fact 
is,  perhaps,  evidence  enough  that  the  law  school  world  is  still  in 
some  ferment  over  the  system  introduced  by  Professor  Langdell 
more  than  thirty  years  ago.  It  is  plain,  however,  that  that  method 
has  made  great  headway,  and  even  when  it  is  not  exclusively 
employed,  it  has  affected,  in  some  degree,  often  in  a  large  degree, 
the  methods  of  study  and  instruction.  The  divergencies  in  some 
schools  in  the  extent  to  which  it  is  combined  with  the  regular  use 
of  text  books  mark  not  so  much  a  difference  in  the  pedagogical 
theory  of  teachers,  as  a  difference  in  the  capacity  and  discipline 
of  students.  There  is  doubt  in  some  quarters  whether  first  year 
students  fresh  from  the  high  schools  can  as  profitably  grapple 
with  case  books  alone  as  with  case  books  supplemented  with 
elementary  text  books.  Had  all  the  students  the  discipline,  capac- 
ity and  maturity  of  the  average  junior  in  a  college  of  liberal  arts 
it  is  probable  that  the  case  books  would  more  largely  supplant  the 

text  books  even  for  regular  first  year  work. 

I 

The  next  real  triumph  of  Langdell's  general  theory  of  legal 
education  came,  however,  in  1903,  when  the  Committee  on  Legal 
Education  in  its  Report  to  the  American  Bar  Association  (Vol. 
XXVI)  said,  "the  objects  of  education  are  first  to  give  mental 
power,  second  to  give  useful  knowledge.  Both  are  of  importance, 
the  first  is  indispensable." 

This  admission  that  the  chief  purpose  of  a  law  school  training 
was  "to  give  mental  power"  was  a  practical  admission  that  that 
system  which  best  produced  mental  power  was  the  correct  system. 
The  endorsement  of  the  Case  System  must  inevitably  follow. 

Professor  J.  H.  Beale,  Jr.,  writes  (1908)  (i)  : 

The  following  important  schools  have  come  to  the  Harvard 
Law  School  for  teachers  to  such  an  extent  that  their  policy  may 
be  said  to  be  largely  influenced  by  the  case  method : 

University  of  Maine,  Fordham,  New  York ;  George  Wash- 
ington, District  of  Columbia ;  Cleveland  and  Cincinnati,  Ohio ; 
University  of  Indiana;  Northwestern  University,  Chicago;  Uni- 
versity of  Illinois ;  University  of  Wisconsin ;  University  of 
Iowa ;  University  of  Missouri ;  University  of  Nebraska  and 
Creighton  University,  Neb. ;  Washburn  University,  Kansas ; 


(T)     See  letter  to  the  author. 


512  HARVARD  LAW  SCHOOL. 

University  of  Colorado  and  University  of  Denver,  Colo. ;  Uni- 
versity of  North  Dakota;  University  of  Utah;  University  of 
Washington  and  Spokane  Law  School,  Washington;  University 
of  California  and  Stanford  University,  Cal. 

In  addition  to  the  direct  influence  which  we  have  exerted 
through  our  graduates  who  have  been  employed  as  teachers  there 
has  come  in  a  secondary  way  an  influence  on  the  older  law 
schools  which  have  adopted  in  whole  or  in  part  the  case  method 
without  having  employed  any  graduates  of  the  School,  as  teachers. 
The  University  of  Pennsylvania  some  years  ago  took  up  the  case 
method  in  a  number  of  courses.  Dean  Lewis  and  Professors 
Pepper  and  Mikell,  and  later  Bohlen  and  others  have  adopted  the 
case  method  and  the  school  may  now  properly  be  called  a  case 
school.  The  same  thing  is  true  in  other  important  schools  which 
in  whole  or  in  part  have  taken  up  this  method,  such  as  New  York 
University ;  Trinity,  North  Carolina ;  University  of  Texas ;  Dick- 
inson University,  Pennsylvania ;  and  even  Michigan,  where  the 
younger  teachers  have  successfully  used  the  case  method. 

The  extent  of  the  practical  endorsement  that  has  been  given  by 
the  Professors  of  Law  may  be  seen  from  the  fact  that  83  Case 
Books  are  advertised  in  the  Harvard  Law  Review  (June  1908), 
of  which  only  27  are  prepared  by  Professors  of  the  Harvard  Law 
School,  the  others  being  the  work  of  Professors  in  the  Law 
Schools  of  Columbia,  Cornell,  University  of  Michigan,  Boston 
University,  University  of  Indiana,  University  of  Missouri,  Uni- 
versity of  Minnesota,  University  of  Pennsylvania,  University  of 
Chicago,  George  Washington  University,  Northwestern  Univer- 
sity, University  of  Nebraska,  New  York  Law  School,  University 
of  the  City  of  New  York.  In  addition,  a  series  of  over  thirty 
volumes  "covering  the  fundamentals  of  the  law  for  the  purpose 
of  class  room  instruction"  known  as  the  American  Case  Book 
Series  is  in  preparation  (1908)  under  the  general  editorial  charge 
of  James  Brown  Scott,  formerly  Professor  and  Dean  of  the  Law 
School  of  Columbia  University,  and  now  Professor  of  Law  in 
George  Washington  University.(i) 

Of  the  influence  of  the  School  and  of  Langdell's  theories  upon 
the  development  of  legal  education  in  England  only  brief  mention 
can  here  be  made;  but  the  subject  is  worthy  of  careful  study. 

As  early  as  1847,  Professor  Greenleaf  writing  to  Harvard 
Corporation  said:  "In  the  discussion  of  the  subject  in  England 

(i)  In  this  connection  it  may  be  of  interest  to  refer  to  an  article  by 
Professor  Albert  Martin  Kales  entitled  The  Next  Step  in  the  Evolution  of 
the  Case  Book,  in  Harv.  Law  Review,  Vol.  XXI  (1907)  ;  and  to  an  article 
by  Henry  W.  Ballantine  on  Adapting  the  Case  Book  to  the  needs  of 
Professional  Training,  in  Amer.  Law  School  Review,  Vol.  II  (1908). 


INFLUENCE  OF   SCHOOL.  513 

and  especially  before  the  Parliamentary  Committee,  this  Institu- 
tion has  been  repeatedly  appealed  to  by  the  friends  of  academical 
instruction  as  an  example  worthy  of  imitation  there  and  I  believe 
it  has  had  its  effect  in  the  recent  revival  of  readings  and  lectures 
in  the  Inns  of  Court."(0 

As  is  well  known,  little  improvement  in  methods  of  legal  educa- 
tion occurred  in  England  until  about  1870,  when,  just  at  the  time 
that  Eliot  and  Langdell  were  stirring  their  great  reforms  at  Har- 
vard, Sir  Richard  Bethel  (Lord  Chancellor  Westbury)  and  Sir 
Roundell  Palmer  (Lord  Chancellor  Selborne)  promoted  a  vigor- 
ous agitation  for  additional  facilities  of  legal  instruction. 

Visits  to  American  law  schools  by  Professors  James  Bryce 
and  A.  V.  Dicey  in  1871,  and  by  Professors  Gerard  Brown  Finch 
and  Frederick  Pollock  in  1885,  resulted  in  the  partial  introduction 
of  Langdell's  system  at  Cambridge  and  Oxford  and  its  enthusias- 
tic support  by  Pollock  in  the  editorial  columns  of  the  Law  Quar- 
terly Review.  And  from  that  time  to  the  present,  slowly  and 
gradually,  these  American  and  Harvard  ideas  have  been  gaining 
ground  in  the  English  Universities  and  with  the  English  Bar. 

One  of  the  most  eloquent  articles  ever  written  in  advocacy  and 
description  of  the  Harvard  Law  School  and  its  methods  appeared 
in  the  Contemporary  Review  for  November,  1899,  written  by 
Professor  Dicey,  after  his  residence  at  Harvard  during  his  course 
of  lectures  to  the  School  in  1898.  (2) 


(1)  See  Harv.  Coll.  Papers,  2nd  Series,  Vol.  XV. 

(2)  Those  interested  in   the  progress  of   English  legal  education   are 
referred  for  further  detail  to  the  following  authorities : 

Report  of  tlie  House  of  Commons  Committee  on  Legal  Education 
(18-16). 

Address  of  Lord  if  estbury  before  the  Juridical  Society  in  Law  Times, 
Vol.  XLVIII  (April  23,  1870). 

Law  Quarterly  Review,  Vol.  II  (Jan.  1886);  Vol.  Ill  (1887);  Vol.  V 
(1889). 

Legal  Education  in  England,  by  George  H.  Emmott,  Amer.  Bar  Assn. 
Proc.,  Vol.  XIX  (1896). 

Legal  Education  and  the  Universities,  by  E.  C.  Clark,  Law  Quarterly 
Review.  Vol.  XII  (1806). 

A  Movement  in  English  Legal  Education,  by  Charles  N.  Gregory, 
Harv.  Law  Review,  Vol.  X  (1897). 

State  of  Legal  Education  in  the  World,  by  Charles  N.  Gregory,  Amer. 
Bar  Assn.  Proc.,  Vol.  XXIII  (1900). 

The  f'ses  of  Legal  History,  by  Montague  Crackenthorpe,  Amer.  Bar. 
Assn.  Proc.,  Vol.  XIX  (1896). 

Legal  Education  and  Reform  of  the  Inns,  Law  Journal,  Vol.  VIII. 

Improvement  of  Legal  Education,  bv  Lord  Selborne,  Law  Mag.  and 
Rcvicw,  (N.  S.).  Vol.  IV  (1875). 

The  Movement  in  Legal  Education,  Law  Times,  Vol.  C  (Jan.  18,  1896). 
33 


HARVARD  LAW  SCHOOL. 

As  a  final  quotation,  however,  there  remains  to  be  cited  the 
most  comprehensive  tribute  ever  paid  to  Langdell's  theories,  and 
to  "the  influence  of  the  Harvard  Law  School, — that  given  by 
President  Eliot  at  the  dinner  of  the  Harvard  Law  School  Asso- 
ciation in  1891,  when  he  said: 

The  modern  training  in  the  law  is  one  of  the  most  strenuous 
of  intellectual  training,  developing  not  any  special  faculty,  so 
much  as  the  whole  reasoning  powers.  ...  I  should  like  to 
add  that  the  whole  University  here  in  Cambridge  has  been  indebt- 
ed to  the  Law  School  for  the  development  of  methods  of  instruc- 
tion. .  .  .  This  is  a  service  which  has  been  rendered  not  to 
law  alone.  History,  the  physical  sciences,  chemistry,  physics,  the 
languages,  the  fine  arts,  add  to  the  development  of  the  method 
which  is  applicable  to  all  fields  of  knowledge. 

When  we  recall  the  great  jurists  whom  the  Harvard  Law 
School  has  brought  into  its  service  as  teachers,  the  men  whom  it 
has  trained  and  sent  forth  into  the  world  to  achieve  fame  and 
honor,  the  professional  ideals  which  it  has  ever  inculcated,  the 
standards  of  education  which  it  has  fostered,  and  the  movement 
towards  higher  legal  thought  and  practice  which  it  has  started,  we 
may  well  say  with  President  Eliot — these  are  services  which  have 
been  rendered  not  to  law  alone. 

And  with  these  words  I  close  this  history. 


Lord  Halsbury  on  Legal  Education,  by  Edward  Jenks,  Laiv  Times,  Vol. 
C  (1896). 

Legal  Education  in  Connection  -with  the  Proposed  Teaching  University 
of  London,  by  Lord  Russell,  Law  Mag.  and  Rev.,  4th  Series,  Vol.  XXIII 
(May,  1898). 


APPENDIX  I. 

APPOINTMENT   OF   PROFESSORS. 

By  mistake,  it  has  been  stated  on  page  432  of  the  second  volume  of  this 
history  that  the  vacancy  left  by  the  resignation  of  Professor  Oliver  Wen- 
dell Holmes  Jr.  was  filled  by  the  appointment  of  William  A.  Keener. 

This  should  be  corrected.  Mr.  Keener  was  appointed  as  an  Assistant 
Professor,  May  14,  1883;  and  the  vacant  New  (or  Weld)  Professorship 
was  filled  by  the  transfer  to  that  position  of  Professor  Thayer  (then  Royall 
Professor),  October  8,  1883.  Professor  Gray  (then  Story  Professor)  was 
made  Royall  Professor,  November  12,  1883.  The  Story  Professorship 
remained  unoccupied  until  Assistant  Professor  Keener  was  appointed  to 
fill  it,  May  14,  1888  (See  page  443). 

Omission  has  also  been  made  of  the  fact  that  Assistant  Professor 
Williston  was  made  a  full  Professor,  May  13,  1895,  eight  years  prior  to 
his  appointment  to  the  Weld  Professorship,  May  25,  1903  (See  page  476). 

Correction  should  also  be  made  of  the  statement  on  page  463  that 
Assistant  Professor  Beale  became  Bussey  Professor,  April  14,  1897.  He 
was  made  a  full  Professor  on  that  date,  but  did  not  succeed  to  the  Bussey 
Professorship  until  May  26,  1903,  taking  the  chair  left  vacant  by  the 
appointment  of  Professor  Ames  to  the  Dane  Professorship. 

The  various  Professorships  to  the  year  1907  have  been  held  as  follows : 

Royall— 1.    Parker    1815-1827 

Ashmun    1829-1833 

Greenleaf       1833-1846 

Kent      1846-1847 

J.    Parker    1847-1868 

N.    Holmes    1868-1872 

Thayer     1873-1883 

Gray      1883- 

Unircrsity — A.    Stearns    1817-1829 

Allen       1849-1850 

Dane — Story       1829-1845 

Greenleaf       1846-1848 

Parsons      1848-1869 

Langdell       1870- 1900 

Langdell  Emeritus  1900-1903 

Ames      1903- 

Bussey  ( University} — Washburn      1856-1876 

Bradley     1876-1879 

Ames       1879-1903 

Beale       1903- 


516  HARVARD  LAW  SCHOOL. 

Story—  Gray     .................................  1875-1883 

Keener       ..............................  1888-1890 

Smith      ................................  1890- 

Weld  (New)-O.  W.   Holmes  Jr  ..............  1882-1883 

Thayer       ......................  1883-1902 

Williston      .....................  1003- 

Bemis—  Strobel      ..............................  1808-1907 

Langdell  —  Wambaugh 


Williston  was  first  appointed  a  full  Professor  May  13,  1895  ;  Wambaugh, 
April  25,  1892;  Ames,  June  25,  1877;  Brannan,  June  15,  1898. 


APPENDIX  II. 
LAW  SCHOOL  STUDENTS  OF  1862. 

Since  this  history  was  finished  the  author  has  received  from  James 
Green  of  Worcester,  Mass.  (L.  S.  1863-64),  a  pamphlet  entitled  Personal 
Recollections  of  Daniel  Henry  Chamberlain,  published  1908,  which  gives  an 
interesting  reminiscence  of  some  well-known  Law  School  students  of  the 
years  1862-64,  as  follows : 

"On  leaving  college  (1862),  Chamberlain  came  at  once  to  the  Harvard 
Law  School,  where  there  was  a  very  strong  representation  of  Yale  men 
at  the  time.  I  remember  two  'Wooden  Spoon'  men — Stanford  Newell  of 
St.  Paul,  Minnesota,  and  George  C.  S.  Southworth  of  Springfield,  Massa- 
chusetts. (The  'Wooden  Spoon'  was  supposed  to  be  elected  to  that  title 
at  Yale  on  account  of  his  surpassing  good  fellowship.)  There  were  also 
two  'Class  Orators.'  Fred.  Adams  was  known  by  his  Yale  nickname  of 
'Judge/  because  of  his  learning  and  fairness  of  mind.  He  is  now  a 
judge  of  high  repute  on  the  New  Jersey  Court  of  Appeals.  William  C. 
Whitney  was  afterwards  Secretary  of  the  Navy.  George  Gray  and  An- 
thony Higgins,  the  latter  from  Yale,  were  afterwards  United  States  Sena- 
tors from  Delaware.  Henry  F.  Dimock  afterwards  left  the  New  York 
Bar  for  a  successful  business  career.  Of  Harvard  men  in  the  Law  School, 
Albert  Stickney  was  long  prominent  at  the  New  York  Bar,  and  was  one 
of  Samuel  J.  Tilden's  ablest  lieutenants  in  the  war  against  the  Tweed 
ring.  Stickney  had  pulled  in  the  Harvard  four-oar  boat  with  Charles  W. 
Eliot,  now  the  President  of  Harvard,  and  with  Alexander  Agassiz.  George 
B.  Young,  who  has  since  been  a  Justice  of  the  Supreme  Court  of  Minne- 
sota and  a  railroad  lawyer  of  national  fame,  was  then  in  the  School,  and 
so  was  Edward  D.  McCarthy,  afterwards  a  prominent  admiralty  lawyer  in 
New  York  City.  There,  too,  were  Henry  James,  who  became  the  novelist : 
John  Fiske,  the  historian,  and  John  E.  Hudson,  the  head  of  the  Bell 
Telephone  system.  Charles  S.  Fairchild  of  Harvard,  1863,  was  afterwards 
Secretary  of  the  Treasury.  Chamberlain  was  in  the  School  for  a  little 
over  a  year.  He  took  part  in  the  discussion  of  "Parliament,"  where 
political  discussions  were  debated  Friday  nights ;  he  belonged  to  various 
law  clubs ;  he  helped  Professor  Washburn  prepare  a  new  edition  of  his 
'Law  of  Real  Property,'  and  worked  for  Professor  Parsons  upon  more 
than  one  of  his  law  books.  With  all  this  hard  work  he  found  plenty  of 
time  for  social  life  and  was  one  of  the  best-liked  men  in  the  School.  I 
remember  his  reading  'Fearne  on  Contingent  Remainders,'  after  he  had 
studied  law  about  a  year,  while  all  the  rest  of  his  law  work  in  the  School 
was  going  on ;  and  when  we  quizzed  him  about  it,  because  it  represented 
the  'dry-as-dust'  of  the  law,  he  said  he  was  testing  himself  in  this  way  to 
see  what  progress  he  had  made  in  the  law  and  how  much  he  really  could 


5i8  HARVARD  LAW  SCHOOL. 

understand.  Ex-Secretary  Fairchild  has  lately  said  that  he  remembered 
Chamberlain  as,  on  the  whole,  the  ablest  man  of  his  time  in  the  Harvard 
I.aw  School. 

But  Chamberlain  had  been  an  Abolitionist,  an  advocate  of  emancipation 
by  war,  and  known  in  college  as  a  'Worcester  man.'  The  war  was  still 
going  on — at  the  opening  of  1864 — and  Chamberlain  felt  that  he  must  take 
a  part  in  the  military  service  or  lose  his  self-respect ;  and  he  got  an  ap- 
pointment by  Governor  Andrew  to  a  lieutenancy  in  the  Fifth  Massachu- 
setts Cavalry,  a  corps  of  colored  men,  and  left  his  Law-School  course  un- 
finished to  go  off  into  camp  at  Readville.  This  was  the  regiment  which 
Harry  S.  Russell,  and  afterwards  Charles  Francis  Adams,  commanded, 
where  Charles  P.  Bowditch  and  many  other  men  of  note  in  Boston  held 
commissions.  After  a  while,  Chamberlain  was  adjutant  in  this  regiment, 
and  he  stayed  in  the  service  to  the  end  of  the  war.  He  made  no  claim  to 
military  genius;  he  simply  wanted  to  do  his  duty. 

Something  that  I  remember  of  our  student  'days  was  always  very 
characteristic  of  this  lawyer.  We  were  working  together  on  a  Moot-Court 
case  in  the  Law  School,  where  he  was  intent  on  knowing  everything  that 
could  be  known  about  the  question.  When  somebody  questioned  what  the 
judgment  was  likely  to  be,  and  I  had  said,  'What  matters  it  anyway  if 
we  have  only  presented  our  own  side  completely  and  forcibly?'  'Yes,' 
said  Chamberlain,  'that  is  very  good,  but  I  want  to  win  the  decision.' " 


APPENDIX  III. 
THE  LAW  SCHOOL  IN  THE  SPANISH  WAR. 

A  total  of  83  Harvard  graduates  and  non-graduates,  who  were  students 
in  the  Law  School,  served  in  the  Spanish  War  in  1898.  The  Glass  given 
in  the  following  table  is  that  in  which  the  law  students  either  graduated 
or  last  studied.(i) 

Harvard  Graduates.  Non-Graduates. 

From  the  Class  of 


i8ss.  . 

1860  

1861  , 

I 

1868  

1870 

1881   .  .... 

j 

1882  

I 

1884  

I 

1887 

1888  

I 

1889  

4 

1890   

1891  . 

4 

1892  

1 

189^.. 

1804.. 

2 

180=; 

1806  

3 

1897.. 

4 

1898  

7 

1800 

s 

1900 

-i 

1901  

6 

IQO2.  . 

5 

IQO4.  . 

i 

53  30 


(i)  This  list  has  been  compiled  from  the  lists  given  in  the  Harvard 
Graduates  Magazine,  Vol.  VIII  (June,  1900),  as  compared  with  the  Har- 
vard College  Quinquennial  Catalogue. 


APPENDIX  IV. 
CONDITIONS  1870-1907. 

The  number  of  students  in  the  Law  School  in  1869-70,  at  the  beginning 
of  the  year  as  stated  in  the  President's  Annual  Report  was  154. 

The  following  table  shows  the  growth  of  the  School,  1870-71  to  1907-08: 


Year, 

Whole 
No.  of 

Student. 

Total  of 
College 
JJ-raduates. 

Harvard 
Gradu- 
ates. 

Graduates 
of  other 
olleges. 

Non- 
Gradu- 
ates. 

Per  cent,  of 
College 
Graduates 

No.ofCol- 

leges  rep- 
resented. 

1870-71 

165 

77 

27 

50 

88 

47 

27 

1871-72 

138 

70 

34 

36 

68 

51 

25 

1872-73 

117 

66 

34 

32 

5i 

56 

25 

1873-74 

141 

86 

49 

37 

55 

61 

25 

1874-75 

144 

82 

63 

19 

62 

57 

18 

1875-76 

173 

93 

60 

33 

80 

54 

25 

1876-77 

199 

116 

74 

42 

83 

58 

30 

1877-78 

196 

121 

80 

4i 

75 

62 

30 

1878-79 

169 

109 

7i 

38 

60 

64 

24 

1879-80 

177 

118 

90 

28 

59 

66 

20 

1880-81 

161 

112 

82 

30 

49 

70 

19 

1881-82 

161 

99 

66 

33 

62 

61 

22 

1882-83 

138 

93 

53 

35 

45 

67 

32 

1883-84 

150 

105 

75 

30 

45 

70 

25 

1884-85 

156 

122 

85 

37 

34 

78 

31 

1885-86 

158 

122 

83 

39 

36 

77 

29 

1886-87 

188 

143 

88 

55 

45 

76 

34 

1887-88 

225 

158 

IO2 

56 

67 

70 

32 

1888-89 

225 

158 

105 

53 

67 

70 

32 

1889-90 

262 

189 

122 

67 

73 

72 

4i 

1890-91 

285 

200 

135 

65 

85 

70 

33 

1891-92 

370 

257 

I4O 

117 

U3 

69 

48 

1892-93 

405 

266 

132 

134 

139 

66 

54 

1893-94 

367 

279 

129 

ISO 

88 

76 

56 

1894-95 

4i3 

310 

139 

171  !  103  !   75 

74 

1895-96 

475 

380 

171 

209 

95 

80 

82 

1896-97 

490 

408 

186 

222 

82 

83 

82 

1897-98 

55i 

490 

229 

26l 

61 

89 

77 

1898-99 

564 

503 

212 

291 

61 

89 

78 

1899-00 

613 

557 

236 

321 

56 

9i 

67 

1900-01 

655 

605 

252 

353 

50 

92 

83 

1901-02 

633 

584 

247 

337 

49 

92 

92 

1902-03 

644 

600 

241 

359 

44 

93 

94 

1903-94 

743 

695 

272 

423 

48 

94 

in 

1904-05 

766 

711 

286 

425 

55* 

93 

114 

1905-06 

727 

716 

295 

421 

ii 

98 

118 

1906-07 

705 

696 

260 

436 

9 

99 

126 

1907-08 

719 

712 

276* 

436* 

7 

99 

122 

*34  Harvard  Seniors  and  i  Dartmouth  Senior  who  have  completed  the 
full  College  course,  but  have  not  received  their  diplomas,  .are  reckoned  as 
graduates.  Prior  to  1905-06  Harvard  Seniors  were  not  reckoned  as  grad- 
uates but  as  non-graduates. 


CONDITIONS  1870-1  !)i)7. 


The  following  table  shows  the  number  of  students  at  the  School  during 
the  whole  of  each  year,  and  also  during  a  part  of  each  year,  1870-71  to 
1893-94. 


Year. 

Whole  No.  of 
students. 

No.  present  dur- 
ing the  whole 
year. 

No.  present  only 
part  of  the  year. 

Average  num- 
ber. 

1870-71 

165 

IO7 

58 

136 

1871-72 

138 

107 

31 

123 

1872-73 

'17 

109 

8 

H3 

1873-74 

141 

121 

20 

131 

1874-75 

144 

130 

M 

137 

1875-76 

173 

153 

20 

163 

1876-77 

199 

168 

31 

184 

1877-78 

196 

172 

24 

183 

1878-79 

169 

137 

32 

154 

1879-80 

177 

138 

39 

157 

1880-81 

161 

136 

25 

149 

1881-82 

161 

139 

2.2 

146 

1882-83 

138 

120 

18 

129 

1883-84 

150 

130 

20 

140 

1884-85 

156 

139 

17 

148 

1885-86 

158 

142 

16 

151 

1886-87 

188 

1  60 

28 

174 

1887-88 

225 

197 

28 

211 

1888-89 

225 

198 

27 

212 

1889-90 

262 

229 

33 

245 

1890-91 

285 

255 

30 

272 

1891-92 

370 

337 

33 

354 

1892-93 

4O  T 

369 

36 

->QQ 
300 

1893-94 

367 

329 

38 

349 

The  table  on  the  opposite  page  shows  the  attendance  at  the  Law  School 
of  students  from  twelve  of  the  leading  colleges,  1870-71  to  1896-97: 


522 


HARVARD  LAW  SCHOOL. 


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COLLEGE. 

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CONDITIONS  1870-1907. 


523 


The  following  tables  from  Dean  Langdell's  Report  of  1893-94  show  the 
division  in  the  School  in  classes,  the  results  of  examination  for  degrees, 
and  the  results  of  admission  examinations. 

The  following  table  exhibits  the  School  as  divided  into  classes  since  the 
establishment  of  the  three-years'  course  and  the  examination  for  admis- 
sion : 


Year. 

•s. 

I- 

l- 
jr 

-  : 
-jr. 

M 

0 
•s; 

CT. 
I- 

•s. 

-X 

O 
X 

X 

s. 
s. 

M 

M 

M 
M 
-s. 

-r 

X 

n 
x 
x 

i.-' 
XJ 

-T 

-jr 

•jr. 

•^ 

X 

..t 

x; 
s 

r- 

00 

--i 

JT 

90 

00 

00 

t« 

x> 

X! 

•i 
x 

-jr. 

M 

e 

05 

c: 

X 

M 

A 

o 
o 

CO 

N 

09 

a> 
oo 
1-1 

co 

r-. 

-i 

OS 
00 

SJ 

ro 

r. 
00 

First       

72 

79 

63 

50 

78 

3-' 
z\ 

46 

57 
58 
M 
3^ 

61 
4i 
25 

34 

59 
38 

20 
21 

58 
40 
22 
30 

75 
37 
17 
.'8 

55 
46 
17 
40 

75 
47 
-M 

4-2 

<Sg 
55 
33 
46 

74 

(.() 

2? 

5« 

90 

59 
5-' 

6_> 

106 
73 

45 
61 

143 
112 
48 
6? 

140 

119 

70 

76 

i49i 
123 
72 
23 

Second      

Third      

Special   Students    .  . 

31 

47 

Tn  regard  to  the  above  table,  it  is  to  be  observed  that,  although  the  three- 
years'  course  went  into  operation  at  the  beginning  of  1877-78,  there  was 
no  third-year  class  until  1879-80.  It  is  also  to  be  observed  that  the  second- 
year  class  of  1877-78  did  not  take  the  three-years'  course,  but  was  gradu- 
ated at  the  end  of  the  second  year,  that  class  having  entered  the  School 
before  the  three-years'  course  went  into  operation. 

The  following  table  exhibits  the  results  of  the  examination  for  a  degree 
in  each  vear  since  the  establishment  of  the  three-vears'  course: 


524 


HARVARD  LAW  SCHOOL. 


Year. 

First  Year. 

Second  Year. 

Third  Year. 

1  I  1 

*g    cj    5 
O    PL,    fc 

1  1  I 

*£     rt     ai 
O    d,    fa 

i  i  -o 

o3    «    « 
£    9    9 

*<     o!     cS 

O   ft   £ 

1877-78 

66   51   15 

66   47   19 

1 


1878-79 

50   42   8 

40   39    i 

1879-80 

73   69   4 

28    26     2 

22   18   4 

1  880-8  1 

45   43    2 

49   46    3 

18   18   o 

I88I-82 

49   44    5 

38   37    i 

36   33    3 

1882-83 

46   44    2 

36   34    2 

21    19     2 

1883-84 

51   41   10 

35   3i    4 

26    25     I 

1884-85 

61   56    5 

30   29    i 

23   19    4 

1885-86 

54   48   6 

4i   38    3 

18   18   o 

1886-87 

66   59   7 

40   38    2 

26   26   o 

1887-88 

80   70   10 

43   34    9 

33   32    i 

1888-89 

72   66   6 

58   55    3 

30   29    i 

1889-90 

86   75   ii 

52   49    3 

Si   47    4 

1800-91 

107  102   5 

62   54   8 

47   46    i 

1891-92 

134  130   4 

loo   91    9 

62   55    7 

1892-93 

139  129   10 

113   101    12 

71   67   4 

1893-94 

165  151   14 

no  108   2 

86   80   6 

In  regard  to  the  foregoing  table  it  is  to  be  observed  that  it  includes  no 
special  students,  and  hence  that  all  the  applicants  included  in  it  were  either 
graduates  of  colleges  or  had  passed  the  examination  for  admission.  Of 
course  this  remark  does  not  apply  to  the  second-year  class  of  1877-78,  and 
this  accounts  in  part  for  the  much  greater  number  of  failures  in  that  class. 

The  following  table  exhibits  the  results  of  the  examinations  for  admis- 
sion in  each  year  since  they  were  established: 


00 

c- 

CO 

OS 

c- 

oo 

o 

CO 
33 

oo 

Iri 

00 

o 

CO 
00 

01 

•JO 

PH 

oo 

co 

CO 
X> 

oq 

GO 
X 

-f 

X) 

OS 

00 
00 

10 

00 

•* 

00 
00 

•,o 

00 

ia 

M 

20 

^ 

CO 

a 

iC 
CO 

00 

CO 

c- 

co 

00 

31 
00 

oo 

CO 
00 

o 

05 
CJ3 

oo 

35 
0 

01 
oo 

CV| 

OS 

r-l 

O3 

oo 

CO 
O5 

c\) 

03 
CO 

OS 

CO 
OS 

oo 

Offered      

16 

15 

T8 

'7ct 

TO 

13 

T? 

17 

17 

r  | 

^ 

TS 

?0 

28 

^ 

64 

S6 

Admitted      

7 

7 

I? 

13 

16 

10 

5 

i  r 

7 

6 

T7 

TT 

TO 

TT 

T8 

36 

22: 

DEGREES. 

As  stated  in  the  Circular  of  the  School  for  1908-09  the  requirements 
for  the  degree  of  LL.  B.  are  as  follows : 

AGE.  At  the  time  of  receiving  the  degree  one  must  have  attained  the 
age  of  twenty-one  years. 

LENGTH  OF  RESIDENCE.  The  required  period  of  residence  at  the  School 
is  three  years.  Students  admitted  to  Advanced  Standing  after  a  year's 
residence  at  another  law  school  may  count  that  year  as  one  of  the  three 
years. 


CONDITIONS  1870-1907. 

EXAMINATIONS.  To  receive  the  degree  of  Bachelor  of  Laws  it  is  neces- 
sary to  pass  satisfactory  examinations  in  the  entire  course  of  three  years, 
Special  Students  being  required  to  obtain  a  mark  within  five  per  cent,  of 
that  demanded  for  the  honor  degree.  Students  who  pass  these  examina- 
tions with  distinguished  excellence  will  receive  the  degree  of  Bachelor  of 
Laws,  cum  laude. 

The  right  to  take  the  examinations,  as  well  as  the  privilege  of  continu- 
ing one's  membership  in  the  School  at  any  time,  is  conditioned  upon 
regular  attendance  at  the  exercises  of  the  School. 

The  examinations  in  the  studies  of  the  first,  second,  and  third  years 
must  be  passed  at  the  end  of  each  year  respectively. 

Xo  student  who  fails  to  pass  an  examination  in  at  least  four  subjects 
at  the  end  of  the  first  year,  or  in  four  full  courses  or  their  equivalent 
at  the  end  of  the  second  and  third  years,  will  be  allowed,  unless  by  a 
special  vote  of  the  Faculty,  to  continue  in  the  School,  or  to  rejoin  it  at  any 
subsequent  time,  unless  at  some  regular  examination  he  obtain  a  general 
average,  on  the  entire  work  of  the  year  in  which  he  failed,  at  least  five 
per  cent,  higher  than  the  usual  passing  mark. 

Xo  student  who  has  more  than  one  condition  standing  against  him  on 
the  work  of  the  first  two  years  will  be  allowed  to  register  as  a  Third-Year 
student,  or  to  graduate  at  the  end  of  his  third  year.  He  may,  however, 
although  registered  as  a  Second-Year  student,  take  and  count  towards  his 
degree  a  limited  number  of  the  Third- Year  subjects,  the  number  varying" 
according  to  the  number  of  his  conditions. 

Xo  student  who  fails,  on  account  of  conditions,  to  receive  his  degree  in 
due  course,  will  be  permitted,  except  by  special  vote  of  the  Faculty,  to 
remove  his  conditions  later  than  two  years  after  the  graduation  of  his 
regular  class. 

Every  person  who,  while  a  member  of  the  School,  shall  pass  a  satis- 
factory examination  in  one  or  more  subjects,  will  be  entitled  to  a  certifi- 
cate, stating  the  length  of  time  he  has  been  a  member  of  the  School  and 
specifying  the  subjects  in  which  he  has  passed  an  examination. 

SPECIAL  STUDENTS. 

The  following  persons  will  be  admitted  as  Special  Students: 

I.  Holders    of    academic    degrees    in    Arts,    Literature,    Philosophy    or 
Science  who  are  not  admissible  as  candidates  for  a  degree. 

II.  Graduates  of  Law  Schools  which  confer  the  degree  only  after  an 
examination  upon  a  three  years'  course  of  at  least  eight  months  in  each 
year. 

III.  Persons  who  have  never  received  a  degree,  but  who  have  attained 
the  age  of  twenty-one  years,  will,  in  rare  instances,  be  admitted  as  Special 
Students  by   special   vote   of  the   Faculty.     Those   who   wish   to   enter   by 
such  a  vote  should  make  application  to  the  Secretary  not  later  than  the 
first  day  of  May,   stating  the  circumstances  which  prevented  them   from 
receiving  a  college  education,  and  giving  their  age.  their  previous  mental 
training,  their  occupation,  if  any,  and  the  name  of  two  persons  familiar 
with    their   character,    ability,   and   attainments.     Those   applicants    whose 


526  HARVARD  LAW  SCHOOL. 

record  seems  to  the  Faculty  sufficiently  promising  will  be  admitted  to  the 
School  upon  passing,  in  September,  satisfactory  examinations  in  Black- 
stone,  in  the  translation  from  standard  Latin  and  French  prose  authors, 
and  in  the  rendering  of  passages  of  easy  English  prose  into  Latin  and 
French. 

ADVANCED    STANDING. 

Any  person  who,  after  becoming  entitled  to  enter  this  School  as  a  regular 
student,  has  been  in  regular  attendance  for  at  least  one  academic  year  of 
not  less  than  eight  months  at  another  law  school  having  a  three  years' 
course  for  its  degree,  will  be  admitted  to  the  Second-Year  class  upon 
passing  satisfactorily,  in  June,  the  annual  examinations  in  the  studies  of 
the  First  Year.  This  examination  will  require  a  thorough  knowledge  of 
the  following  books :  Wambaugh's  Cases  on  Agency;  Gray's  Cases  on 
Property,  vols  I,  2  (2d  ed.)  ;  Williston's  Cases  on  Contracts;  Cases  on 
Torts:  Ames,  vol.  I  (2d  ed.),  and  Smith,  vol.  2  (with  supplement)  ;  Beale's 
Cases  on  Criminal  Law;  Ames's  Cases  on  Pleading  (26.  ed.).  The  exam- 
ination is  by  printed  questions,  which  the  candidates  answer  in  writing 
in  the  presence  of  the  examiner. 

FINANCES. 

President  Eliot  at  the  meeting  of  the  Harvard  Law  School  Association 
held  in  honor  of  Langdell,  June  25,  1895,  said : 

And  now  I  come  to  a  third  of  Professor  Langclell's  achievements,  one 
which,  I  venture  to  say,  has  greatly  commended  itself  to  his  Scotch  nature. 
I  refer  to  the  extraordinary  pecuniary  success  of  the  Law  School.  He 
never  shrank  from  any  measure  of  change  because  it  threatened  a  loss  of 
pecuniary  resources.  .  .  .  But  when  in  time  the  success  of  his  work 
was  demonstrated  ...  it  was  a  sincere  delight  to  the  Dean  that  the 
Law  School  became  the  most  prosperous  of  all  the  departments  of  the 
University. 

A  synopsis  of  the  financial  condition  of  the  School,  1869-70  to  1006-07 
well  illustrated  the  above  remark. 

The  following  table  shows  the  totals  of  the  funds  of  the  School  at  the 
end  of  each  fiscal  year ;  also  the  receipts  and  payments  of  the  School  and 
the  yearly  balance  or  deficit  (sums  marked  *  being  deficits).  This  table 
has  been  compiled  from  the  Annual  Reports  of  the  President. 


C'OXDITIOXS  1870-1907 


Funds. 

Receipts. 

Payments. 

Balance. 

i 

1869-70 

$36,781.55 

$21.679.87 

$20.467-27 

$1,212.60 

1870-71 

36.781.55 

24,962.35 

25,660.54 

698.19* 

1871-72 

36,781.55             27,681.39 

27,286.00 

395-39     ! 

1872-73 

36,78i.55 

22,915.12 

22,806.73 

108.39 

1873-74 

42,486.84             29,748.75 

23.849.05 

5,89970 

1874-75 

47,701.61             29,876.95 

24.662.18 

5,214-77 

1875-76 

51,614.15             32,618.25 

30,994.79 

1,623.46 

1876-77 

56,980.07             34,63541 

29,269.49 

5,365.92 

1877-78 

58,246.71             33,487-66 

32,220.92               1,266.74 

1878-79 

53.689.80             26,805.14 

31,362.15 

4,557-01* 

1879-80 

55,456.95 

29,228.39 

27,461.24 

1,767-15 

1880-81 

56,132.72 

27,198.28 

26,522.51 

67577 

1881-82 

296,866.78 

166,540.85 

41,036.79 

364-26 

1882-83 

205,459.60 

34,180.03 

132.378.46 

1,674.76* 

1883-84 

179,632.78 

32,921.77 

66,179.66 

412.86* 

1884-85 

173.860.53              39,744-79 

38,304-25 

3,176.94 

1885-86 

176,898.40              35,408.14 

32,151.99 

2,889.54 

1886-87 

180.049.67              37.9i8.5i 

3-1,767.24 

2,850.38 

1887-88 

188,562.66             45.521.60 

36,639.61 

8,291.19 

1888-89 

200,425.54              45-7M.I5 

38.851.27 

6,525-86 

1889-90 

217.619.47              52.454.55 

40,260.62 

12,193-93 

1890-91 

234.255.35             57.ojS.34 

45.402.46 

11,635.88 

1891-92 

252.729.49             69.392.04 

51,077.90 

18,314.14 

1892-93 

319.930.45             78.027.42 

61,671.69 

13,818.56 

1893-94 

33^618.98 

73,398.38 

59.732.05 

11,134-77 

1894-95 

359.565.68             83,534.17 

56,487.47 

24.568.  1  1 

1895-96 

383,655-65             89,725.97 

65,636.00 

21,378.97 

1896-97 

394.271.09             94.950.89 

84,33545 

7,103-88 

1897-98 

4^7,378.08 

103.381.81 

70,273.92 

29,624.34 

1898-99 

457.926.65 

107.052.77 

79,505.10 

27.194.11 

1899-00 

490.890.38 

117,401.68 

84-437-95 

32,870.16 

IOOO-OI 

524.419.51 

122.737.96 

89,208.83 

33,225.25 

1901-02 

566.766.27 

122,096.03 

79.749.27 

41,959.67 

1902-03 

600,317.23 

125.519.00 

91,968.04 

31,522.18 

1903-04 

649,078.83 

141,030.23 

92,286.63 

44,674-21 

1904-05 

693-198-53 

146,906.73 

101,202.03 

4i,35L22 

1905-06 

842.346.90 

265,200.24 

115,226.87 

24,834.78 

1906-07 

641.505.44 

141,203.24 

346,069.33 

215,286.08* 

During  the  period  of  thirty-seven  years  covered  by  the  above  table  there 
were  only  four  years  in  which  the  expenses  of  the  School  exceeded  its 
receipts,  1870-71,  1878-1879,  1882-83,  1883-84,  the  latter  two  years  being  the 
years  of  extraordinary  expense  in  moving  into  Austin  Hall. 

The  large  increase  in  1881-82  in  receipts  was  due  to  the  gift  of  the 
Austin  Hall  Building  Fund  of  $125,139.80,  the  Law  School  Book  Fund  of 
$25.233,  and  the  New  Professorship  Fund  of  $90,000.  In  1882-83  the  funds 
included  the  unexpected  portion  of  the  Austin  Hall  Building  Fund  amount- 
ing to  $25,653.33,  the  Law  School  Book  Fund  of  $32,021.25,  and  the  Xeu 
Professorship  Fund  of  $90,000. 

The  increase  in  1892-93  was  due  to  Bemis  Professorship  Fund.  $50.000.00. 

In  1898-99,  the  James  Barr  Ames  Prize  Fund,  $3,000.  was  first  included. 


528  HARVARD  LAW  SCHOOL. 

The  receipts  for  1902-03  include  $500  Hughes  Loan  Fund;  for  1904-05, 
$500  James  Barr  Ames  Loan  Fund. 

The  sudden  large  increase  in  1905-06  was  due  to  the  James  C.  Carter 
Professorship  Fund  of  $100,000,  and  the  James  C.  Carter  Loan  Fund, 
$12,000,  the  George  Fisher  Scholarship  Fund  of  $3,500,  and  the  Hughes 
Loan  Fund  Additional  of  $750.  In  1906-07,  the  receipts  include  the  $5,000 
S.  P.  F.  Fay  Scholarship  Fund. 

The  large  increase  in  payments  in  1882-83,  1883-84,  1884-85,  was  due  to 
the  inclusion  of  Austin  Hall  Building  Accounts,  $102,233,25,  $33,084.40  and 
$7,803.18,  making  the  total  cost  of  Austin  Hall,  $143,120.83. 

The  increase  in  1896-97  was  due  to  the  alteration  of  Austin  Hall, 
$18,222.19. 

The  payments  for  1905-06  and  1906-07  include  $16,530.25  and  $246417.40 
respectively  as  cost  of  Langdell  Hall.  The  payments  in  1904-05,  1905-06 
and  1906-07  as  stated  in  the  table  are  exclusive  of  payments  made  from 
beneficiary  and  loan  funds  in  those  years  of  $1,585,  $825,  and  $975-37  re- 
spectively. 

FUNDS. 

The  Law  School  Funds  as  reported  by  the  Treasurer,  1906-07,  were  as 
follows 

$347,742.95  Law    School    (balance) $132456.87 

547.32  James  Barr  Ames    Loan    (1904) 574-i8 

4,116.57  James  Barr  Ames  Prize  (1898) 3,810.51 

78,201.86  Bemis    Professorship    ( 1879) 82,041.58 

2,021.81  Gift  of  James  Munsor.  Barnard  and  Au- 
gusta   Barnard    (balance) 2,047.68 

23,979.82  Bussey    Professorship    (1862) 23,979.82 

102,764.98  James  C.  Carter  (Professorship  1906)..  107,810.74 

12,047.40  James  Coolidge  Carter  Loan   (1906)...  12,638.91 

I5,750.oo  Dane    Professorship    ( 1829) 15,750.00 

Samuel     Phillips     Prescott     Fay,     1798, 

Fund  and  Scholarship   (1907) 5,081.85 

3,564.84  George   Fisher   Scholarship    (1906) 3,739-88 

756.12  Hughes  Loan    ( 1903) 476-84 

47,021.25  Law  School  Book  ( 1882) 47,021.25 

100,000.00  Law  School  Library    (1898) 100,000.00 

8,340.81  Royall    Professorship    ( 1781 ) 8,340.81 

496.20  Scholarship  money  returned    (balance) .  739-55 

94,994.97  Weld   Professorship    ( 1882) 94,994.97    641,505.44 

RECEIPTS. 
The  receipts  for  the  Law  School  for  1906-07 : 

Gift  for  Capital  Account. 

Samuel  Phillips  Prescott  Fay  1798  Fund 
and   Scholarship $5,000.00 


CONDITIONS  1870-1907. 


529 


Income  of  Funds  and  Gifts. 

Law  School  balance  (interest  on) $10,292.15 

James   Barr  Ames  Loan 26.86 

James  Barr  Ames  Prize 103.94 

Gift  of  James  Munson  Barnard  and  Au- 
gusta Barnard.     Interest  on  balance..  40.24 

Bemis  Professorship   3,839.72 

Bussey   Professorship    1,177.42 

Bussey    Trust    (part,    see    pp.    106,    117, 

131)     2,710.28 

James    C.    Carter    Professorship 5,045.76 

James  Coolidge  Carter  Loan 59I-5I 

Dane    Professorship    773-3-2 

Samuel  Phillips  Prescott  Fay  1798  Fund 

and   Scholarship    81.85 

George  Fisher  Scholarship I75-O4 

John  Foster,  for  Medical  Students  and 

for  Law  Students  in  alternate  years..  I55-7O 

Hughes    Loan.      Interest $37-12 

Repayments     ...234.60  271.72 

Law   School  Book 2,308.73 

Law  School  Library   4,910.00 

Royall    Professorship    409.54 

Weld  Professorship  4,664.25 

Scholarship  Money  Returned. 

Interest     $24-35 

Repayments    219.00  243.35 

Interest  on  account  of  tuition  fees  paid 

in   advance    495-36 

Tuition  fees   102,880.00 

Sale  of  catalogues   6.50    141,203.24 


$146,203.24 


PAYMENTS  1906-07. 

The  payments  for  the  Law  School  for  1906-07  were: 

From  Funds  and  Gifts. 

James  Barr  Ames  Prize 

Gift   of    James    Munson    Barnard    and    Augusta    Barnard 

for  books    

Hughes  Loan    


$410.00 

14-37 
551-00 


Scholarships  from  unrestricted  income   $5,250.00 

Salaries  for  instruction   53.475.oo 

34 


530  HARVARD  LAW  SCHOOL. 

Librarians  and  Assistants  1 1,136.91 

Secretary •. 675.00 

Services  of  examiners  and  proctors 343-50 

Repairs  and  improvements   320.46 

Care  and  cleaning  1,665.08 

Fuel    679.04 

Water 98.45 

Lighting     1,416.21 

Printing     2,839.73 

Furniture     168.83 

Stationery  and  postage    601.96 

Telephone    77-50 

Books    14,670.83 

Binding    2,998.52 

Cleaning  and  moving  books  32.00 

Advertising 125.00 

Insurance 226.17 


$96,800.19 
PROFESSORSHIP  INCOMES. 

The  following  table  gives  the  amount  of  the  income  of  various  Pro- 
fessorship Funds  and  of  the  Bussey  Trust  Fund  at  the  end  of  each  fiscal 
year.  It  will  be  noticed  that  all  (except  the  Bemis  Professorship)  show 
a  more  or  less  steady  decrease  of  income.  The  income  of  the  Bussey 
Trust  Fund  shows  great  variations,  from  a  maximum  of  $8,837.49  in  1873- 
74  to  a  minimum  of  $1,752.64  in  1879-80.  The  principal  of  this  fund  being 
largely  invested  in  real  estate  suffered  greatly  in  the  Boston  Fire,  and  is 
naturally  subject  to  varying  conditions.  For  the  first  four  years  of  this 
period  covered  it  was  carried  on  the  Treasurer's  books  at  $410,191.68.  Be- 
ginning with  1873-74  it  was  $413,092.80  until  1893-94,  since  which  date  it 
has  been  carried  at  $413,709.18.  This  table  has  been  compiled  from  the 
Annual  Reports  of  the  President. 


CONDITION'S   1S7l)-li)07. 


Koyall 
Prof. 

Dane 
Prof. 

Bussev 
Prof. 

Bussey 
Trust. 

New 
(Weld) 
Prof. 

Bennis 
Prof. 

1868-69 

$575-91 

$1,087.50 

$915.33 

$5,62/.6l 

1869-70 

532.22 

1,005.00 

845.90 

7,771-75 

1870-71 

587.03 

,108.96 

1.022.62 

8,430.8l 

1871-72 

621.30 

,173.00 

,175-00 

8,223.76 

1872-73 

591-00 

,116.00 

.029.55 

4.583.57 

1873-74 

655.38 

,237.50 

,141.63 

8,83749 

1874-75 

561.64 

,060.50 

,261.64 

8,748.56 

1875-76 

536.22 

.012.50 

-541-57 

8.577.96 

1876-77 

530.19 

,OOI.7O 

,525.13 

4451-49 

1877-78 

488.75 

927.95 

1405-23 

4,412.76 

i 

1878-79 

473-77 

894-60 

1,362.06 

2,556.67 

1879-80 

4/1.49 

889.88 

1,354.67 

1,752.64 

1880-81 

447-oS 

844.20 

1.285.33 

1,775-76 

1881-82 

468.76 

885.15 

1,347.68 

2,342.53 

1882-83 

464o9 

877.28 

1,335.69 

2,611.74 

$4.500.00 

1883-84 

441.23 

814.28 

1.23977 

2,819.24 

4-739-37 

1884-85 

45-'.9-> 

855.23 

1  ,302.  1  T 

2,174.04 

5,066.78 

1885-86 

432.00 

8l/43 

1.244.96 

3,828.17 

4,866.6l 

1886-87 

42&39 

803.25 

1,222.98 

2,783.94 

4,806.89 

1887-88 

4I7-50 

787.50 

IJ99.00 

3,856.54 

4,721.80 

1888-89 

426.23 

804.83 

1-225.38 

3,852.45 

4,837.02 

1889-90 

412.05 

778.05 

1,184.61 

4,436.53 

4-692.75 

1890-91 

429o6 

8II.I2 

1,234-97 

3,9I7-I2 

4,892.24 

1891-92 

429.56 

8II.I2 

1,234-97 

3,224-87 

4,892.24 

1892-93 

416.26 

785.92 

1,196.60 

3,729.38 

4,740-25 

1893-94 

403./0 

762.30 

1,160.63 

4,572.64 

4,59776 

$2,537-17 

1894-95 

377-01 

711.00 

1,083.00 

8.005.16 

4.29378 

2,53I-56 

1895-96 

394-53 

744-97 

1,1; 

2.401.34 

4,493.26 

2478.591 

1896-97 

392.03 

740.25 

1,127.06 

4,520.70 

4.464.76 

2.821.22 

1897-98 

364-50 

688.27 

1.047.93 

5,252.l8 

4.151.28 

2,746.41 

1898-99 

382.85 

722.93 

1.  100.68 

4.021.62 

4,360.20 

3.0IO./2 

1899-00 

380.35 

718.20 

1.093.49 

5.692.01 

4-33  '77 

2.091.54! 

1900-01 

392.03 

740.25 

1,127.06 

3,947.38 

4.464.76 

3,083.39 

1901-02 

400.37 

756.00 

1,151.04 

4.919-26 

4.559.76 

3,152-98 

1902-03 

300.36 

737-10 

1,122.26 

2.949.10 

4.44577! 

3,o8l.3I 

1903-04 

397-00 

751.28 

1.143-85 

2,995-47 

4-531.26! 

3.239-88 

1904-05 

410.37 

774.90 

1,179.81 

2,127.58 

4,67;.  75 

3.50I.I7 

1005-06 

395.36 

746.55 

1,136.65 

3,256.16 

4,502.76 

3,539-03' 

1906-07 

409o4 

773-52 

1,177.42 

2.710.28 

4,664.25 

3,83972  j 

GIFTS    SINCE    1890. 

Previous  to  1890,  the  gifts  to  the  School  were  few,  and  have  already 
been  mentioned.  The  gifts  to  the  Library  have  been  set  forth  separately 
in  the  chapters  relating  to  the  Library  of  the  various  periods  in  its  his- 
tory. The  following  gifts  were  made  to  the  School  itself,  1890-1907: 

1890-91.     $170  from  Samuel  \\il1iston  as  repayment  of  scholarship  money 

received  while  a  law  student. 

$1.000  through  Louis  D.  Brandeis  from  an  anonymous  friend  for 
a  course  on  Peculiarities  of  Massachusetts  Law  and  Practice. 


532  HARVARD  LAW  SCHOOL. 

1891-92.    $1,000  from  Louis  D.  Brandeis  (as  above). 
1892-93.    $1,000  from  Louis  D.  Brandeis  (as  above). 

1893-94.  $1,000  from  the  Harvard  Law  School  Association  for  a  course 
of  lectures  on  Conflict  of  Laws. 

1894-95.    $1,000  from  Louis  D.  Brandeis  (as  above). 
1895-96.     (None.) 

1896-97.  $503  from  Julian  W.  Mack  to  be  added  to  the  balance  of 
''Scholarship  Money  Returned."(i) 

1897-98.    $246.50  from  Julian  W.  Mack  repayment  of  scholarship  money. 
$700  from  James  Byrne  as  repayment  of  scholarship  money. 

1898-99.  $3,000  from  Julian  W.  Mack  to  establish  the  James  Barr  Ames 
Fund  from  the  income  of  which  a  prize  not  less  than  $400 
shall  be  from  time  to  time  awarded  for  a  meritorious  essay  or 
book  on  some  legal  subject." 

$150  from  Julian  W.  Mack  towards  "The  Ames  Prize"  of  $500, 
which  is  to  be  awarded  in  1901  from  this  gift  and  from  the 
income  of  the  "James  Barr  Ames  Fund." 

$600  from  the  Harvard  Law  School  Association  to  pay  for  lec- 
tures on  "Changes  in  the  English  Law  during  the  igth  Cen- 
tury." 

1899-00.     (None.) 
1901-02.     (None.) 


(i)     In  his  report  for  1896-97,  Dean  Ames  said: 

"Within  recent  years  three  alumni  have  repaid  the  amount  of  money 
received  by  them  as  holders  of  scholarships  when  students  at  the  School. 
At  the  suggestion  of  one  of  these,  who  insisted  upon  adding  to  his  con- 
tribution compound  interest  for  ten  years,  the  money  coming  from 
former  holders  of  scholarships  has  been  set  apart  as  a  special  loan  fund 
for  the  benefit  of  meritorious  students  in  years  to  come.  It  is  believed 
that  many  other  recipients  of  scholarships  will  be  glad  to  add  to  this 
fund,  and  thereby  give  to  their  successors  the  advantage  that  they  them- 
selves enjoyed." 

In  his  report  for  1897-97,  Dean  Ames  said: 

"It  is  a  pleasure  to  mention  a  substantial  addition  to  the  fund  of 
'Scholarship  Money  Returned.'  One  of  our  graduates  who  has  won 
a  high  position  among  the  lawyers  of  New  York,  with  a  generous  dis- 
regard of  the  usual  correspondence  between  payment  and  repaymetn,  has 
given  to  the  School  more  than  doubled  what  he  received  in  scholar- 
ships. It  is  a  noteworthy  fact  that  a  majority  of  those  who  have 
returned  their  scholarship  money  are  now  professors  in  law  schools,  and 
that  all  have  had  some  experience  in  teaching  law." 


CONDITIONS  1870-1907.  533 

1901-02.     (Xoiie.) 

May  26,  1903.  The  sum  of  $500  was  received  from  Charles  James 
Hughes,  Jr.,  and  the  Corporation  voted  on  recommenda- 
tion of  the  Law  Faculty,  to  use  it  as  a  loan  fund  to  stu- 
dents to  be  called  the  Hughes  Loan  Fund. 

Dec.  14,  1903.  An  anonymous  gift  of  $75  was  received  to  be  used  for  the 
benefit  of  some  deserving  law  student  with  special  refer- 
ence to  any  recommendation  which  Professor  Jeremiah 
Smith  may  make. 

Sept.  27,  1904.  A  gift  from  Prof.  J.  B.  Ames  of  $500  "for  the  benefit  of 
law  students  who  are  in  need  of  pecuniary  aid,  and  who 
by  reason  of  their  -character,  capacity  and  wealth  promise 
to  be  efficient  and  influential  members  of  the  community 
in  which  they  live." 

1905-06.     Dean  Ames  reported  as  follows : 

"Miss  Frances  A.  L.  Haven,  in  memory  of  James  Coolidge 
Carter,  the  distinguished  lawyer,  and  the  long-time  friend  of 
her  father's  family,  gave  the  School  $12,000  to  establish  the 
James  Coolidge  Carter  Loan  Fund,  the  income  of  which  is  to 
be  loaned  to  students  of  limited  means  and  of  exceptional 
character  and  ability.  As  this  fund  will  steadily  increase  by 
the  payment  of  interest  and  the  repayment  of  loans,  it  is  pro- 
vided that  the  excess  of  income  over  $1,000  may  be  used  for 
the  purchase  of  books,  preferably  for  those  relating  to  the 
subjects  taught  by  the  holder  of  the  new  professorship  in  the 
Law  School,  created  by  the  bequest  of  Mr.  Carter,  and  to  be 
known  as  the  Carter  Professorship.  Miss  Haven's  gift  will  be 
as  beneficent  in  its  results  as  it  is  interesting  in  its  associations. 
By  the  gift  of  $3.500  the  School  has  for  the  first  time  a 
scholarship  wholly  its  own.  The  scholarship,  to  be  called  the 
George  Fisher  scholarship,  was  established  by  the  generosity 
of  Mrs.  Austin  C.  Wellington,  in  memory  and  in  honor  of  her 
father,  the  late  George  Fisher,  who  was  a  student  in  this 
School  in  the  year  1853-54." 

The  sum  of  $750  from  Charles  J.  Hughes  Jr.  to  be  added  to  the  Hughes 
Loan  Fund. 

PRIZE    DISSERTATIONS. 
Subjects  and  Winners. 

(N.  B. — Under  each  subject,  the  first  name  is  that  of  the  winner  of  thf 
first  prize;  the  second  name,  of  the  second  prize.) 


534  HARVARD  LAW  SCHOOL. 

1849-50.  The  Competency  of  Witnesses.  Dorman  B.  Eaton,  of  Burling- 
ton, Vt.  John  C.  King,  of  Baltimore,  Md. 

Stoppage  in  Transitu.  Buel  Bushnell,  of  Warren,  Ohio.  George 
G.  Williams,  of  Boston. 

1850-51.  The  Rights  and  Liabilities  of  Railroad  Corporations.  Arthur  W. 
Machen,  of  Virginia.  Thomas  Hitchcock,  of  New  York. 

The  Law  of  Landlord  and  Tenant.  Lemuel  Shaw,  Jr.,  of  Bos- 
ton. Alfred  Russell,  of  Plymouth,  N.  H. 

1851-52.  The  Consideration  of  Contract  at  Law  and  in  Equity.  Edward 
L.  Pierce,  of  Dorchester.  Charles  R.  Codman,  of  Boston. 

The  Responsibility  of  a  Principal  for  the  Acts  or  Representation 
of  his  Agent.  Francis  Rowland,  of  New  York.  John  Winslow, 
of  Newton. 

J852-53.  The  Rights  and  Obligations  of  Riparian  Proprietors.  Henry 
Woodruff,  of  Cincinnati,  Ohio.  Daniel  Clark,  of  Maryland. 

Rights  and  Liabilities  of  Parents  in  Respect  of  Their  Minor 
Children.  George  R.  Richardson,  of  Lowell,  Mass.  Charles  A. 
Norton,  of  Ravenna,  Ohio. 

1853-54.  The  Adoption  of  the  Principles  of  Equity  Jurisprudence  into  the 
Administration  of  the  Common  Law.  William  P.  Wells,  of  St. 
Albans,  Vt.  William  E.  Chandler,  of  Concord,  N.  H. 

Mortgages  of  Personal  Property.     Addison  Brown,  of  Bradford. 

1854-55.  Husband's  Power  Over  the  Chases  in  Action  of  the  Wife. 
Wilder  Dwight,  of  Brookline,  Mass.  A.  S.  Hill,  of  Worcester, 
Mass. 

Essentials  of  a  Contract  of  Sale  of  Personal  Chattels.  James  W. 
Hurd,  of  Dover,  N.  H.  George  Bliss,  of  Springfield,  Mass. 

1855-s6.  Right  of  Eminent  Domain.  James  B.  Thayer,  of  Northampton, 
Mass.  Jeremiah  French,  of  Burlington,  Vt. 

Mutual  Relations  of  the  Cargo  to  the  Ship  and  the  Ship  to  the 
Cargo.  Josiah  K.  Bennett,  of  Cambridge,  Mass.  Henry  Craw- 
ford, of  New  Albany,  Ind. 

1856-57.  English  Doctrine  of  Uses  as  an  Element  of  the  American  Law  of 
Conveyance.  Henry  Crawford,  of  New  Albany,  Ind.  John  Mar- 
shall Vanmeter,  of  Chillicothe,  Ohio. 


CONDITIONS  1870-1907.  535 

Conveyances  by  Railroad  Corporations  of  Their  Franchises  and 
Other  Property.  Alexander  Martin,  of  Mississippi.  George  Put- 
man,  of  Roxbury,  Mass. 

1857-58.  Right  of  a  Legislature  (without  reference  to  the  Law  of  Emin- 
ent Domain)  to  Change  the  Legal  Character  of  Estates  or  the 
Title  to  the  Property  by  General  or  Special  Enactments.  William 
Wirt  Burrage,  of  Cambridge,  Mass.  Leonard  A.  Jones,  of 
Templeton,  Mass. 

Right  and  Effect  of  Abandonment  by  the  Law  of  Insurance. 
John  P.  Jackson,  of  Newark,  N.  J.  Harrison  Lindenbovver,  of 
Buffalo,  N.  Y. 

1858-59.  Forfeiture  of  Leasehold  Estates.  Henry  W.  Fuller,  of  Concord, 
N.  H.  Francis  M.  Spalding,  of  Billerica,  Mass. 

The  Indorsement  of  Negotiable  Paper  by  One  Not  a  Party  to  It. 
George  M.  Woodruff,  of  Litchfield,  Conn.  Joseph  L.  Stackpolc, 
of  Cambridge,  Mass. 

1859-60.  Estate  of  the  Mortgagor  and  That  of  the  Mortgagee  in  Mort- 
gaged Real  Property.  Charles  F.  Walcott,  of  Salem,  Mass. 
Thomas  Kinnicut,  of  Worcester,  Mass. 

How  Far  the  Security  Which  Shipowners  Hare  in  the  Goods 
They  Carry  for  the  Freight  Money  is  in  the  Nature  of  a  Com- 
mon Law  Lien  or  a  Privilegium  of  the  Civil  Law.  Robert  D. 
Smith,  of  Cambridge.  Alfred  L.  Edward,  of  New  York. 

1860-61.  Doctrine  of  Subrogation  in  Courts  of  Equity.  James  W.  Steph- 
enson,  of  Cambridge.  James  M.  Donnell,  of  Wells,  Me. 

Covenants  for  Title  Running  With  the  Land.  Thomas  A.  Hen- 
derson, of  Dover,  N.  H.  John  W.  Odlin,  of  Concord,  N.  H. 

1861-62.  Rules  and  Reasons  for  Distinguishing  Property  into  Real  and 
Personal.  Albert  Stickney,  of  Cambridge.  Charles  L.  Swan,  of 
South  Easton,  Mass. 

Recent  Changes  in  the  Laws  Relative  to  the  Property  of  Married 
IVomen.  William  G.  Colburn,  of  Manchester,  N.  H.  John  P. 
Treadwell.  of  Portsmouth,  N.  H. 

1862-63.  The  Infuencc  of  the  Roman  Laiv  in  the  Formation  and  Deter- 
mination of  the  Rules  and  Privileges  of  the  English  and  American 
Lait:  Alonzo  B.  Wentworth,  of  Somersworth,  N.  H. 


536  HARVARD  LAW  SCHOOL. 

Rights  of  Property  or  Easement  in  Subterranean  Waters.  W. 
H.  Towne,  of  Brookline,  Mass.  Melborne  H.  Ingalls,  of  Harri- 
son, Me. 

1863-64.  Rights,  Duties  and  Responsibilities  of  the  Directors,  Trustees 
and  Managers  of  Corporations  as  they  Relate  to  the  Stockhold- 
ers. James  P.  Brown,  of  Pittsburg,  Pa.  Flavius  J.  McMillan, 
of  Colburne,  C.  W. 

The  Extent  to  Which  the  Doctrine  of  Tenure  as  Known  to  the 
Common  Law  Exists  in  This  Country  and  the  Cases  and  Manner 
in  ivhich  it  Affects  the  Rights  of  Landholders.  Douglas  Camp- 
bell, of  Cherry  Valley,  N.  Y.  Frederic  Adams,  of  Orange,  N.  J. 

1864-65.  By  What  Means  and  to  What  Extent  a  Common  Carrier  May 
Limit  His  Liability.  Godfrey  S.  Thaler,  of  Stillwater,  Minn. 
James  T.  Kilbreth,  of  Cincinnati,  Ohio. 

Rights  and  Duties  of  Neutrals  in  Respect  to  the  Armed  Vessels 
of  Belligerents.  Charles  C.  Beaman,  of  Cambridge.  Edward  W. 
Paige,  of  Schenectady,  N.  Y. 

1865-66.  The  Extent  to  Which  the  Common  Law  is  Applied  in  Determin- 
ing What  Constitutes  a  Crime  and  the  Nature  and  Degree  of 
Punishment  Consequent  Thereon.  Jeremiah  Travis,  of  St.  John, 
N.  B.  David  B.  Lyman,  of  Hilo,  Sandwich  Islands. 

The  Doctrine  of  Excluding  What  is  Offered  in  Evidence  on  the 
Ground  of  Incompetency.  Jacob  H.  Wieting,  of  Middletown,  Pa. 
Henry  M.  Buford,  of  Danville,  Ky. 

1866-67.  Sources  and  Limitations  of  the  American  Common  Law.  Mark 
Anthony  Blaisdell,  of  Boston.  Samuel  A.  Gardner,  of  Cam- 
bridge. 

V/hen  and  on  What  Ground  is  the  Participant  of  the  Profits  of  a 
Partnership  Exempt  from  Liabilities  as  a  Partner  for  Its  Debts. 
Francis  W.  Kittredge,  of  Lowell,  Mass.  John  Q.  A.  Brackett,  of 
Boston. 

1867-68.  Uses  and  Advantages  of  the  Study  of  the  Principles  and  Rules  of 
Special  Pleading  in  Those  States  Where  It  Has  Been  Abolished 
by  Statute.  Robert  P.  Harlow,  of  Middleboro,  Mass.  William 
Blaikie,  of  Boston. 

Limits  of  the  Exclusive  Jurisdiction  of  Admiralty  in  the  United 
States.  George  P.  Dutton,  of  Ellsworth,  Me.  George  H.  Bates, 
of  Dover,  Del. 


CONDITIONS  1870-1907.  537 

1868-69.  Growth  and  Progress  of  the  Common  Laiv  as  a  Science  as  Illus- 
trated in  History.  Kdward  J.  Holmes,  of  Boston.  William  S. 
Bassford,  of  Atlanta,  Ga. 

ll'hethcr  Any,  and  if  Any,  What  Warranty  of  Seaworthiness  is 
Implied  in  Time  Policies  of  Insurance.  Henry  W.  Allen,  of 
Providence,  R.  I.  Isaac  T.  Hoague,  of  Cambridge. 

In  U'liat  Cases,  if  Any.  and  to  ll'hat  Extent  Are  Primitive  or 
Exemplary  Damages  Recoverable  in  Actions  or  Tort.  Edward 
R.  Brown,  of  Providence,  R.  I.  Charles  A.  Merrill,  of  Boston. 

1869-70.  To  U'liat  Extent  and  With  ll'hat  Qualifications  Communica- 
tions by  Telegraph  Comes  ll'ithin  the  Law  of  Bailment.  Austen 
George  Fox,  of  New  York.  Marcus  Rosenthal,  of  San  Fran- 
cisco, Cal. 

The  Proper  Scope  and  Limits  of  Expert  Testimony.  Isaac  Tay- 
lor Hoague,  of  Cambridge.  Oliver  John  Brown,  of  St.  Louis, 
Mo. 

Is  More  or  Stronger  Evidence  Required  to  Establish  Fraud  in 
Courts  of  Law  Than  in  Courts  of  Equity.  James  Jefferson  My- 
ers, of  Frewsburg,  N.  Y.  Julius  L.  Brown,  of  Atlanta,  Ga. 


APPENDIX  V. 
HARVARD  LAW  ASSOCIATION. 

It  is  not  generally  known  that  in  1868  an  association  of  the  alumni  of  the 
Harvard  Law  School  was  formed  under  the  name  of  the  Harvard  Law 
Association.  Its  life,  however,  was  brief.  The  following  account  of  its 
origin  appeared  in  the  Harvard  Law  Review,  Vol.  II,  in  May,  1888. 

To  the  Editors  of  the  HARVARD  LAW  REVIEW,  Cambridge,  Mass. : 

GENTLEMEN. — Mr.  Justice  John  Lathrop  of  the  Superior  Court  of  Massa- 
chusetts recently  discovered  in  a  collection  of  old  papers  in  his  office  in  the 
Court  House,  in  this  city,  some  valuable  and  interesting  documents  and 
letters  relating  to  the  organization  of  a  Harvard  Law  School  Association 
in  the  year  1868,  which  he  has  very  kindly  placed  in  my  hands  to  be  pre- 
served with  the  papers  and  records  of  the  present  Harvard  Law  School 
Association. 

Among  these  papers  is  a  printed  circular  containing  an  account  of  the 
formation  of  the  Association  of  1868,  to  which  are  appended  the  autograph 
signatures  of  two  hundred  and  seventeen  former  members  and  students 
of  the  Harvard  Law  School,  who  subscribed  to  the  constitution  and  united 
to  form  the  Association. 

Believing  that  this  document  will  prove  of  great  interest,  not  only  to 
the  survivors  of  the  group  of  former  members  of  the  Law  School  who 
united  to  form  this  first  Association  of  its  Alumni,  but  also  to  all  Harvard 
Law  School  men  now  living  who  are  members  of,  or  interested  in,  the 
present  Harvard  Law  School  Association,  I  send  you  a  copy  of  the  circular, 
and  of  the  list  of  the  original  two  hundred  and  seventeen  subscribers,  with 
the  request  and  suggestion  that  they  may  be  printed  in  the  pages  of  the 
HARVARD  LAW  REVIEW. 

The  organization  of  the  Association  of  1868  was  followed  in  the  next 
year  by  a  reunion  of  its  members  at  a  dinner  at  the  Parker  House, 
Boston,  June  24,  1869,  which  was  numerously  attended.  Among  the  dis- 
tinguished guests  present  on  that  occasion  who  responded  to  toasts  were: 
Hon.  E.  R.  Hoar,  Attorney-General  of  the  United  States ;  Mr.  Justice 
Horace  Gray,  of  the  Supreme  Court  of  Massachusetts;  Professor  Theo- 
philus  Parsons  of  the  Harvard  Law  School ;  Chief  Justice  Charles  L. 
Bradley  of  the  Supreme  Court  of  Rhode  Island ;  Mr.  Justice  Storer  of 
Ohio;  Mr.  Justice  Charles  Devens  of  the  Supreme  Court  of  Massachusetts; 
Mr.  Justice  John  Wells  of  the  Supreme  Court  of  Massachusetts; 
Professor  James  Russell  Lowell. 

How  soon  thereafter  the  Harvard  Law  School  Association  of  1868  ceased 
altogether  to  meet  for  any  purpose,  either  of  business  or  pleasure,  and 


LAW  ASSOCIATION.  539 

passed  into  history,  I  am  unable  to  say,  for  none  of  the  documents  tint 
have  come  recently  into  my  possession  relate  to  any  proceedings,  or  tell  the 
history,  of  the  Association,  subsequent  to  the  dinner  of  June  24,  1869,  and  I 
am  at  present  without  other  sources  of  information. 

Very  truly  yours, 

\VIXTHI«I]'  I!.  WADE, 

Treasurer  H.  L.  S.  /Iss'ii. 


HARVARD  LAW  ASSOCIATION. 
DANE  LAW  SCHOOL,  CAMBRIDGE,   MASS. 

A  meeting  of  the  Students  and  Resident  Graduates  of  the  DANE  LAW 
SCHOOL  was  held  in  the  Library  Room  of  Dane  Hall,  on  the  evening  of  the 
twenty-second  of  June,  for  the  purpose  of  proposing  a  plan  for  the  organi- 
zation of  an  Association  of  the  past  and  present  members  of  the  School. 
At  this  meeting  a  committee  was  appointed  to  make  arrangements  for  a 
second  meeting,  and  to  prepare  an  address  to  the  older  members  of  the 
School,  inviting  their  attendance  at,  and  co-operation  in,  the  proceedings 
of  the  subsequent  meeting. 

Agreeably  to  such  instruction,  the  following  circular  was  prepared  and 
issued  by  the  committee : 

Cambridge,  June  25,  1868. 

SIR, — The  many  pleasant,  personal,  and  local  associations  which  ordinarily 
grow  out  of  the  assembling  together  of  young  men,  for  the  purposes  oi 
education  and  general  culture,  have  often  suggested  to  the  members  of  the 
Law  School  of  Harvard  University  a  desire  to  adopt  some  means  of  keep- 
ing alive  an  interest  in  each  other's  fortunes  and  success  in  life,  and  in 
preserving  those  relations  of  personal  regard,  which  time  and  a  separation 
from  each  other  can  hardly  fail  to  dim,  if  not  to  obliterate. 

Encouraged  by  opinions  expressed  by  past  members  of  the  School,  the 
present  members  thereof,  in  order  to  devise  a  plan  for  a  more  permanent 
union  of  influence  and  interest,  convened  at  Dane  Hall  on  the  evening  of 
the  twenty-second  inst.,  to  consult  upon  the  best  means  of  accomplishing 
this  purpose.  A  committee  was  raised  to  consult  with  former  members 
of  the  School  and  ask  their  co-operation,  and  to  address  to  such  of  them 
as  they  could  reasonably  expect  to  be  present,  a  circular  inviting  them  to 
attend  a  meeting  at  an  early  day  for  the  purpose  of  forming  an  Association 
similar  to  the  Alumni  Associations  of  the  New  England  Colleges,  of  such 
as  have  been  members  of  the  Harvard  Law  School,  to  come  together  at 
stated  periods,  and  to  strengthen  and  extend  a  liberal  and  generous  sym- 
pathy among  those  who  have  been  educated  to  the  same  noble  science,  and 
have  shared  the  instruction  and  honors  of  a  common  Alma  Mater. 

This  circular  letter,  subscribed  by  past  as  well  as  present  members  of 
the  School,  has  accordingly  been  prepared,  and  is  now  forwarded  to  you, 
requesting  yon  to  meet  at  Dane  Hall,  on  Thursday.  July  Qth,  1868,  at  /'.^ 


540  HARVARD  LAW  SCHOOL. 

o'clock  P.  M.,  to  confer  and  take  measures  to  organize  such  an  Association. 
If  unable  to  attend,  please  communicate  your  views  and  wishes  in  the 
premises,  by  letter,  to  be  read  at  the  meeting,  addressed  to  GEORGE  H. 
BATES,  Cambridge,  Mass. 

The  undersigned  would  venture  further  to  suggest,  in  favor  of  such  an 
Association,  that,  if  organized  and  sustained  upon  the  broad  and  generous 
principle  of  cultivating  a  mutual  respect  and  regard  among  the  members 
of  a  profession  so  widely  extended,  and  embracing  within  its  scope  so  many 
subjects  of  important  and  interesting  investigation,  it  can  hardly  fail  to  be 
of  great  value  as  an  instrumentality  for  food,  beyond  its  bearing  upon  the 
personal  relations  of  its  members.  It  can  be  made  the  medium  of  a 
sound  public  sentiment  upon  matters  outside  of  the  immediate  precincts  of 
professional  duty,  and  will  go  far  towards  creating  and  strengthening  that 
relation  which  ought  to  subsist  between  educated  men,  and  supplying  a 
principle  of  national  life  and  unity  to  the  active  thought  of  the  country. 

Yours  truly, 

GEORGE  S.  HILLARD,  HORACE  R.  CHENEY. 

EMORY  WASHBURN,  GEORGE  H.  BATES, 

BENJ.  R.  CURTIS,  THOS.  McC.  BABSON, 

CHAS.  THEO.  RUSSELL,  JOHN  J.  McCooK, 

THOS.  RUSSELL,  Of  the  School. 

E.  P.  BROWN, 
J.  Q.  A.  BRACKETT, 
WM.  H.  WINTERS, 

Of  the  Alumni. 

The  second  meeting  was  held  in  Dane  Hall,  on  Thursday  evening,  July 
9th,  and  was  organized  on  motion  of  HON.  GEO.  S.  HILLARD,  by  the  appoint- 
ment of  Ex-Gov.  WASHBURN  as  Chairman.  PROF.  WASHBURN,  on  taking 
the  chair,  made  a  statement  of  the  objects  of  the  meetings,  and  expressed 
himself  as  heartily  in  favor  of  the  establishment  of  an  Association  of  the 
character  proposed,  believing  that  the  existence  of  such  an  organization 
would  advantageously  affect  the  prosperity  and  influence  of  the  School ; 
that  it  would  be  a  bond  of  sympathy  and  union  between  the  members 
of  the  profession  in  all  parts  of  the  Union,  who  have  enjoyed  the  advan- 
tages of  a  legal  education  at  Cambridge,  and  would  assist  in  securing  the 
success  of  those  important  principles  and  objects  to  which  the  attention 
of  the  Alumni  had  been  called  in  the  above  circular.  On  motion,  MR.  W. 
H.  WINTERS  was  appointed  Secretary.  HON.  CHAS.  THEO.  RUSSELL  moved 
that  the  meeting  proceed  to  the  organization  of  an  Association  of  the 
School  as  proposed.  The  motion  was  carried. 

On  motion  of  HON.  RICHARD  H.  DANA,  JR.,  it  was  voted  that  a  com- 
mittee of  five  be  appointed  to  draft  a  Constitution.  The  Chair  appointed 
as  members  of  said  committee,  Messrs.  DANA,  LATHROP,  WRIGHT,  BRACK- 
ETT, and  BABSON. 

During  the  absence  of  the  committee,  MR.  G.  H.  BATES,  of  Delaware, 
read  letters  in  response  to  the  circular  from  JUDGE  GEO.  HOADLEY,  Cincin- 


LAW  ASSOCIATION.  541 

nati;  GEN.  GEO.  F.  SHEPLEY,  Portland;  HON.  ELIHU  B.  WASHBURNE, 
Washington,  D.  C. ;  HON.  WM.  PINCKNEV  WHITE,  Baltimore;  Gov.  R.  B. 
HAYES,  Ohio;  JUDGE  NATKANIEL  HOLMES,  St.  Louis;  HON.  A.  G.  MA- 
C;KATH,  Charleston,  S.  C. ;  HON.  CHAS.  PEABODY,  New  York ;  JUDGE  DEVENS, 
Worcester;  JUDGE  MARCUS  MORTON;  HON.  JOHN  C.  CHURCHILL.  Washing- 
ton, D.  C. ;  PROF.  THEO.  PARSONS,  and  others. 

Brief  and  interesting  addresses  were  also  made  by  HON.  GEO.  S.  HILLAKD 
(Class  of  1832),  JAMES  RUSSELL  LOWELL  (Class  of  1841),  HON.  RICHARD 
H.  DANA,  JR.,  and  by  other  gentlemen. 

The  Committee  on  the  Constitution,  through  their  Chairman,  Mr.  Dana, 
made  their  report. 

The  Constitution  as  adopted  is  hereinafter  recited. 

Upon  the  adoption  of  the  Constitution,  a  committee  on  permanent  organi- 
zation, composed  of  Messrs.  RUSSELL,  LOWELL,  THOMAS,  CLIFFORD,  and 
BATES,  were  appointed.  The  report  of  the  committee  was  accepted,  and 
the  following  members  were  selected  as  the  officers  of  the  Association 
for  the  first  term  : 

President,  Hon.  BENJAMIN  R.  CURTIS,  Massachusetts. 

Vice-Presidents,         "     CHARLES  BRADLEY,  Rhode  Island. 
"     WM.  M.  EVARTS,  New  York. 
"     A.  S.  MAGRATH,  South  Carolina. 
"     GEORGE  HOADLEY,  Ohio. 

OGDEN  HOFFMAN,  California. 

Recording  Secretary,  JOHN  LATHROP,  Esq.,  Boston. 
Corresponding  Secretary,  C.  C.  READ.  " 
Treasurer,  WM.  I.  BOWDITCH, 
Executive  Comittee,  Hon.  RICHARD  H.  DANA,  JR. 
"     GEORGE  S.  HILLARD. 

HENRY  W.   MUZZEY,  Esq. 
FRANK  GOODWIN, 
JOHN  F.  SMITH, 

The  following  resolution  was  unanimously  adopted : 

Resolved,  That  the  members  of  the  Association  are  earnestly  recom- 
mended to  form  auxiliary  local  clubs  in  the  States  and  principal  cities  of 
the  Union,  to  assist  in  promoting  the  objects  set  forth  in  the  preamble  to 
the  Constitution. 

On  motion  the  meeting  then  adjourned. 

Gentlemen  who  have  been  connected  with  the  Law  School,  either  as 
professors  or  students,  are  invited  to  subscribe  their  names  to  the  fol- 
lowing, the  Constitution. 

CONSTITUTION  OF  THE  HARVARD  LAW  ASSOCIATION. 

Preamble. 
The  past  and  present  members  of  the  Dane  Law  School  of  Harvard 


542  HARVARD  LAW  SCHOOL. 

University  unite  to  form  "The  Harvard  Law  Association,"  having  in  view, 
among  others,  the  following  objects:  To  maintain  and  advance  the  char- 
acter of  the  Dane  Law  School, — to  promote  its  general  welfare,  to  revive 
the  pleasing  memories  of  common  legal  studies,  to  secure  the  highest 
moral  and  intellectual  standards  for  the  legal  profession,  and  to  purify  it 
from  sectional  and  all  other  narrowing  influences ;  also  by  cultivating  a 
mutual  respect  and  an  agreeable  social  intercourse  among  its  members,  to 
become  the  medium  of  a  sound  public  sentiment  upon  matters  outside  of 
the  strict  limits  of  professional  duty,  and  to  create  and  strengthen  those 
relations  which  ought  to  subsist  between  educated  men  whose  position  gives 
them  influence  over  the  life  and  thought  of  the  country. 

ART.  I.  MEMBERS. 

All  who  have  been  connected  with  the  Law  School,  either  as  professors 
or  students,  shall  be  of  right  members  of  the  Association. 

ART.  II.  OFFICERS. 

SECTION  I.  The  Officers  of  the  Association  shall  be  a  President,  five 
Vice-Presidents,  a  Recording  Secretary,  a  Corresponding  Secretary,  a 
Treasurer,  and  an  Executive  Committee ;  all  of  whom  shall  be  elected 
at  regular  meetings  of  the  Association,  to  serve  for  the  term  of  two  years. 

SECT.  2.  The  President  shall  preside  at  all  meetings,  and  perform  all 
the  other  duties  usually  incident  to  that  office. 

SECT.  3.  The  V 'ice-Presidents  in  the  order  of  seniority  shall,  in  the 
absence  of  the  President,  perform  his  duties. 

They  shall  be  elected  one  from  each  of  the  Neiv  England,  Middle, 
Southern,  Western,  and  Pacific  division  of  States. 

SECT.  4.  The  Recording  Secretary  shall  have  charge  of  all  records  of 
the  Association,  shall  make  and  keep  accurate  minutes  of  all  meetings, 
shall  prepare  and  preserve,  as  accurately  as  may  be,  a  record  of  all  mem- 
bers of  the  Asssociation,  with  the  year  in  which  they  left  the  School,  their 
residence,  the  public  positions  which  they  may  have  held,  and  any  other 
matters  of  interest  concerning  them.  He  may  in  his  discretion  .appoint  in 
any  State  an  Assistant  Secretary,  whose  duty  it  shall  be  to  collect  and 
forward  to  him  any  statistics  in  regard  to  the  members  of  the  Association 
in  that  section  of  the  country. 

SECT.  5.  The  Corresponding  Secretary  shall  conduct  the  correspondence 
of  the  Association. 

SECT.  6.  The  Executive  Committee  shall  consist  of  five  members,  by 
election,  residing  in  Massachusetts,  and  the  Secretary  and  Treasurer,  ex- 
officiis. 

ART.  III.  MEETINGS. 

There  shall  be  a  meeting  of  the  Association  every  year,  at  such  time  as 
the  Executive  Committee  shall  appoint,  who  shall  also  have  authority  to 
call  special  meetings,  with  such  notice  as  they  shall  deem  sufficient. 


LAW  ASSOCIATION. 

ART.  IV.  AMENDMENTS. 


543 


This  Constitution  may  be  awarded  at  any  of  the  regular  meetings  of  the 
Association  by  a  vote  of  two-thirds  of  those  present. 


B.  R.  Curtis, 
Emory  Washburn, 
Theophilus   Parsons, 
Nathaniel  Holmes, 
Darwin  E.   Ware, 
Geo.  Griggs, 

John  C.  Ropes, 
Edwin  H.  Abbot, 
George  M.  Reed, 
J.  M.  F.  Howard, 
F.  C.  Loring, 
Saml.   Batchelder,  jr., 
Thornton  K.  Lothrop, 
Henry  H.  Sprague, 
Wm.  W.  Warren, 
Leonard  A.  Jones, 
George  Abbot  James, 
Charles  E.  Stratton,  jr., 
Samuel  S.  Shaw, 

C.  W.  Loring. 
Samuel  Snow, 
Theodore   H.  Tyndale, 
Benj.  F.  Thomas, 

A.  K.  P.  Joy, 
Sam.  W.  Bates, 
S.  E.  Sewall, 
Charles  F.   Choate, 
Richard   Olney, 
Thomas  Weston,  jr., 
\V.  R.  P.  Washburn 
W.  W.  Swan, 
H.  Farnum  Smith, 
J.  Q.  A.  Brackett, 
Wm.  A.  Munroe, 
George  M.   Hobbs, 
William   Henry  Towne, 
Isaac   Hull  Wright, 
George  B.   Bigelow, 
Abbe  C.  Clark. 
William  Blaikie, 
Frank  W.   Bigelow. 
S.  H.  Wentworth, 
Horace  R.  Cheney. 


K.  B.  Kendall, 
H.  A.  Scudder, 
Rich.   H.  Dana,  jr., 
G.  S.  Hillard, 
John  Lathrop, 
Austin  J.  Coolidge, 
G.  11.  Richards, 
Jas.  Hewins, 
Fisher  Ames, 
R.   R.   Bishop. 
Arthur  Lincoln 
George  S.  Frost, 
James  J.  Wright,  C.  '61, 
Benj.  F.  Brooks, 
Henry  M.  Rogers, 
Gerard   C.   Tobey, 
A.  J.  C.  Sowdon, 
Woodward  Emery, 
John   P.  Treadwell, 
Alex.  Young, 
John  T.  Wilson, 
M.  A.  Blaisdell, 
H.  J.  Stevens, 
Nathan  Morse, 
E.    Augustus   Alger, 
James  F.  Farley, 
Jabez  S.  Holmes, 
Oliver  Stevens, 
Charles   F.   Donnelly. 
Phineas    Aver, 
Chas.  F.  Dunbar. 
Chas.  Eustis  Hubbard, 
Charles  G.  Keyes, 
W.  W.  Blackmar. 
A.  B.  Almon. 
I.  D.  Van  Duzee. 
John  H.  Ellis, 
J.  Lewis  Stackpole, 
Jon.  F.  Barrett. 
J.  E.   Bat.-. 
Geo.  W.  Tuxbury. 
Geo.  Z.  Adams. 
William  B.  Durant. 


Edward  Bangs, 
Thos.  P.  Proctor, 
George  E.  Otis, 
Philip  H.  Sears, 
Joseph  F.  Clark, 
R.  F.  Fuller, 
Edw'd  D.   Boit.  jr.. 
S.  Lothrop  Thorndike. 
John  C.  Gray,  jr., 
Samuel  C.  Davis,  jr., 
John  Codman. 
Geo.   A.    Fisher, 
Robert  D.  Smith, 
William    W.    Carruth, 
Charles  F.  Walcott, 
Aaron   E.   Warner, 
John  W.  Titus, 
Wm.  C.  Williamson, 
Alonzo  B.  Wentworth, 
John  W.    Hudson, 
Geo.    H.   Gordon. 
R.    M.    Morse,  jr., 
Richard  Stone,  jr., 
C.  W.  Huntington, 
B.  W.  Harris. 
Chas.  R.  Train, 
Max    Fischacher, 
Henry   W.    Muzzey, 
A.   Kingsbury, 
Jos.   M.   Churchill. 
Alfred  Hememvay. 
Chas.  W.  Storey, 
Payson   E.   Tucker, 
John  O.  Teele, 
S.  Arthur  Bent, 
Wm.  I.  Bowditch, 
Horace  G  Hutchins. 
N    S.  J.  Green. 
George  Bancroft. 
H.  H.  Coolidpe. 
William  A.   Hayes,  jr., 
John    A.    Loring, 
Maurice  Goddard. 


544 


HARVARD  LAW  SCHOOL. 


C.  M.  Ellis, 
Augustine  Jones, 
Charles  J.  Mclntire, 
Albert  B.  Otis, 
C.  Demond, 
Saml.  Jennison, 
Ambrose   Wellington, 
Selwin  Z.  Bowman, 
W.  P.  Walley, 
George  F.  Piper, 
Moorfield  Storey, 
Henry  Hyde  Smith, 
Thomas  F.   Maquire, 
M.  E.  Ingalls, 
F.  W.  Jacobs, 
Lemuel  Shaw, 
John  G.  King, 
Gardiner  G.  Hubbard, 
Chas.  Theo.  Russell, 

C.  C.  Reed, 
A.  C.  Buzell, 
Thomas   H.   Russell, 
William    E.    Perkins, 

D.  J.  Collins, 
George    P.    Sanger, 
Isaac  S.  Morse, 

I  lales  W.  Suter, 
N.  B.  Bryant, 
Hiram    Wellington, 
Fras.   A.   Brooks, 


Geo.  Wm.  Estabrook, 
Uriel   H.   Crocker, 
Edwin  Wright, 
Geo.  L.  Roberts, 
O.  B.  Mowry, 
T.  L.  Sturtevant, 
J.  Brown  Lord, 
Henry  L.  Hallet, 
Frank  W.  Hackett, 
Wm.  A.   Herrick, 
E.  L.  Motte, 
Frank   W.   Kittredge, 
Wm.  J.  Forsaith, 
George  G.  Crocker, 
J.  H.  Bradley, 
Joseph    Willard, 
A.  W.  Lamson, 
C.   G.  Thomas, 
William   G.    Colburn, 
Jas.  B.  F.  Thomas, 
George   W.   Ware,  jr., 
Warren  Tilton, 
Henry   C.    Hutchins, 
J.    Wingate   Thornton, 
John  Noble, 
E.  P.  Brown, 
A.  S.  Wheeler, 
Chas.  Wheeler, 
Ivers  J.   Austin, 
Charles    Allen, 


John   L.   Eldridge, 
Charles  E.  Powers, 
John  C.  Park, 
C.  H.  Hudson, 
Francis  Bartlett, 
John  L.  Thorndike, 
Linus  M.  Child, 
Asa   French, 
George  White, 
William  A.   Richardson, 
L.  B.  Thompson, 
Wm.   P.   Harding, 
J.  W.  Hamond, 
Francis  W.   Palfrey, 
James  J.  Storrow, 
S.  Bartlett,  jr., 
David   Thaxter, 
Saml.  F.  McCleary, 
Charles  P.  Curtis, 
Robert    Codman, 

E.  P.  Nettleton, 

M.  F.  Dickinson,  junr., 

F.  W.  Pelton, 
Joel  Giles, 

Geo.  R.  Hastings, 
Thos.  Wm.  Clarke, 
Alonzo  V.  Lynde, 
Curtis  Abbott. 


APPENDIX  VI. 
THE  HARVARD  LAW  SCHOOL  ASSOCIATION. 

On  July  21,  1886,  a  self-appointed  committee  of  graduates  of  the 
Harvard  Law  School,  consisting  of  Darwin  E.  Ware,  /'53;  John  C.  Ropes, 
l'6i ;  Henry  W.  Putnam,  /'72 ;  Joseph  B.  Warner,  FJS  ;  Louis  D.  Brandeis, 
/'77;  William  Schofield,  /'83;  and  Winthrop  H.  Wade,  /'&(,  started  a 
movement  for  the  organization  of  an  Alumni  Association  of  the  Law 
School,  and  on  August  9  of  that  year  issued  a  printed  circular,  inviting 
the  cooperation  of  all  graduates  and  former  members  of  the  School  in 
carrying  out  this  object.  The  circular  set  forth  that  the  general  object 
of  such  an  Association  should  be  to  bring  together  all  those  members 
of  the  legal  profession,  who  were  connected  by  the  common  bond  of 
having  made  their  preparation,  or  some  part  of  their  preparation,  for  the 
practice  of  the  law,  in  the  Harvard  Law  School,  'and  to  be  the  means  of 
increasing  the  influence  and  usefulness  of  the  School.  Responding  cordi- 
ally to  this  invitation,  about  one  hundred  and  fifty  graduates  and  former 
members  of  the  Law  School  met  in  Boston  on  Sept.  23,  1886,  and  took 
the  preliminary  steps  for  the  organization  of  the  Association.  They 
adopted  a  Constitution,  and  voted  to  hold  the  first  general  meeting  for  the 
election  of  officers,  and  the  approval  of  their  work  of  organization,  at 
Cambridge,  on  Nov.  5,  1886,  upon  the  occasion  of  the  celebration  of  the 
2Soth  anniversary  of  the  founding  of  Harvard  College. 

Thus  the  Harvard  Law  School  Association  was  born.  It  proved  a 
lusty  and  progressive  infant  from  the  hour  of  its  birth.  Pursuant  to  the 
call  of  a  committee  on  arrangements,  of  which  Robert  M.  Morse,  L.  S.  '60, 
was  chairman,  about  400  loyal  and  enthusiastic  graduates  and  former 
members  of  the  School  assembled  at  the  Law  School  in  Cambridge,  on 
Nov.  5,  1886,  enrolled  themselves  as  members  of  the  Association,  adopted 
the  most  democratic  constitution  possible,  and  elected  the  following  board 
of  officers:  J.  C.  Carter,  /'53,  pres. ;  L.  D.  Brandeis,  /'77,  sec.;  W.  H. 
Wade,  /"84,  treas;  council:  J.  M.  Barker,  L.  S.  '63;  F.  P.  Goulding,  L.  S. 
'66;  J.  L.  Thorndike,  f68;  T  H.  Tyndale,  L.  S.  '68;  P.  A.  Collins,  I'ji ;  A. 
L.  Huntington,  ^'74;  F.  P.  Fish,  L.  S.  '76;  S.  B.  Clarke,  /'76;  F.  C.  S. 
Bartlett,  L.  S.  '77;  A.  L.  Lowell,  f8o;  William  Schofield,  /'83;  Sherman 
Hoar,  L.  S.  '84.  Of  this  board,  President  Carter  and  Councilors  Barker, 
Goulding,  Collins,  Huntington,  Bartlett,  and  Hoar  have  since  died. 

The  striking  feature  of  the  Constitution  is  embodied  in  that  article 
which  admits  and  welcomes  to  membership  "all  graduates,  all  former 
members,  and  all  present  members  of  the  Harvard  Law  School  who  have 


(i)     This  article  was  written  by  Winthrop  H.  Wade  for  the  Harvard 
Graduates  Magazine,  June,  1907,  and  is  republished  here  by  his  courtesy. 
35 


546  HARVARD  LAW  SCHOOL. 

been  such  for  at  least  one  academic  year  exclusive  of  Commencement 
Week,"  and  imposes  only  the  modest  annual  due  of  one  dollar  upon  each 
member,  which  may  be  commuted  at  any  time  by  the  payment  of  a  life 
membership  fee  of  $15  (afterwards  reduced,  with  marked  success,  to  $10). 
The  Constitution  declares  the  objects  of  the  Association  to  be  the  ad- 
vancement of  the  cause  of  legal  education,  the  promotion  of  the  inter- 
ests and  usefulness  of  the  Harvard  Law  School,  and  the  promotion  of 
mutual  acquaintance  and  good  fellowship  among  its  members. 

At  the  close  of  the  business  meeting,  which  adopted  this  Constitution 
and  elected  the  foregoing  officers,  the  members  marched  to  Sanders 
Theatre,  and  listened  to  an  oration  by  Oliver  Wendell  Holmes,  Jr.,  /'66, 
then  an  associate  justice  of  the  Supreme  Judicial  Court  of  Massachusetts, 
and  afterwards  marched  to  the  Hemenway  Gymnasium  to  dinner,  at 
which  Mr.  Carter,  the  newly  elected  President,  presided,  and  interesting 
addresses  were  made  by  President  Carter,  ^536  President  C.  W.  Eliot; 
S.  E.  Sewall,  {'20;  Judge  T.  M.  Cooley;  A.  R.  Lawton,  /'42;  G.  O.  Shat- 
tuck,  /'54 ;  J.  C.  Gray,  /'6i ;  E.  R.  Hoar,  ^39 ;  and  F.  W.  Hackett,  L.  S.  '66. 
Such  was  the  happy  christening  following  the  auspicious  birth  of  the 
Association. 

Immediately  this  vigorous  infant  began  "to  do  things."  On  April  i, 
1887,  it  issued  a  circular  announcing  a  membership  of  558,  representing 
29  states  and  territories  of  the  United  States,  and  the  Dominion  of  Can- 
ada, and  the  preparation  of  a  catalogue,  edited  by  John  H.  Arnold,  the 
Librarian  of  the  School,  of  all  the  students  who  had  ever  attended  the 
Harvard  Law  School.  This  valuable  work  was  then  done  for  the  first 
time  in  the  history  of  the  School,  and  the  Catalogue  has  since  been  regu- 
larly issued  every  five  years  by  the  Law  School  at  the  same  time  with  the 
Quinquennial  Catalogue  of  the  University.  The  unique  features  of  this 
Catalogue  are,  that  the  addresses,  as  well  as  the  names,  of  all  graduates 
and  former  students  of  the  Law  School  are  given,  and  three  separate  lists 
are  printed,  one  by  classes,  one  by  geographical  location,  and  one  in  alpha- 
betical order,  serving  as  an  index  to  the  other  two.  The  Council  of  the 
Association  also  printed  and  distributed  to  members  a  handsome  Me- 
morial Report  of  its  Celebration  of  Nov.  5,  1886,  including  the  oration  of 
Judge  Holmes  and  the  addresses  at  the  dinner. 

With  a  view  to  encouraging  original  work  among  the  students  of  the 
School,  the  Association,  on  Nov.  19,  1887,  appropriated  from  its  income  the 
sum  of  $100  as  a  prize  for  the  best  essay  to  be  contributed  by  a  member  of 
the  Law  School  on  a  subject  selected  by  a  Special  Committee  of  the  Coun- 
cil, and  this  prize  was  first  awarded  to  Samuel  Williston,  /'88  (now  Weld 
Professor  of  Law  in  the  School),  for  an  essay  on  "The  History  of  the  Law 
of  Business  Corporations  prior  to  the  Year  1800."  This  action  led  two 
years  later  to  the  generous  offer  of  C.  C.  Beaman,  L.  S.  '65,  of  New 
York,  to  provide  the  sum  of  $100  per  year  for  a  term  of  five  years,  as  an 
annual  prize,  under  similar  conditions  to  be  prescribed  by  the  Council. 
The  winners  of  this  Law  School  Association  prize  in  subsequent  years 
were  E.  V.  Abbot,  /'89;  C.  E.  Shattuck,  /'oo:  E.  R.  Thayer,  l'g\ ;  and  O. 
R.  Mitchell,  /'93- 


LAW  SCHOOL  ASSOCIATION.  547 

The  Council  of  the  Association  next  turned  its  attention  to  increasing 
the  resources  of  the  Law  School  itself,  and  in  the  first  annual  report  of 
the  Treasurer,  issued  Jan.  2,  1888,  announced  a  gift  of  $1,000  to  the  Law 
School,  subscribed  by  ten  members  of  the  Association  for  the  purpose  of 
increasing  the  instruction  of  the  School  in  the  subject  of  Constitutional 
Law  for  the  academic  year  of  1888-89.  The  donors  of  this  gift  were 
President  Carter,  I'ss;  W.  G.  Russell,  /'45;  G.  O.  Shattuck,  /'54;  John 
Lowell,  /'45;  George  Putnam,  I'sS;  William  Minot,  fyo;  R.  M.  Morse, 
L.  S.  '60;  J.  J.  Storrow,  L.  S.  '59;  A.  L.  Lowell,  /'8o;  and  A.  L.  Hunt- 
ington,  /'74. 

On  June  26,  1888,  the  Association  met  again  in  fraternal  celebration 
in  Cambridge,  with  Hon.  D.  H.  Chamberlain,  ^64,  of  New  York,  as  the 
Orator  of  the  day,  and  President  Carter,  /'53;  President  C.  W.  Eliot;  C. 
C.  Beaman,  L.  S.  '65;  G.  O.  Shattuck,  ['54;  G.  G.  Crocker,  /'66;  A.  G.  Fox, 
/'7i ;  and  Alfred  Hemenway,  L.  S.  '63,  as  speakers  at  the  dinner  which 
followed  in  Masaachusetts  Hall.  A  full  stenographic  report  of  the  ora- 
tion and  addresses  at  the  dinner  was  printed  in  the  Boston  Post  of  the 
following  day,  and  mailed  to  all  members  of  the  Association. 

The  Association  had  grown  to  a  membership  of  764,  representing  41 
states  and  territories,  and  the  Dominion  of  Canada.  A  year  later  (1889* 
the  membership  reached  816,  and  included  representatives  from  the 
classes  of  1830,  1831,  1833,  1835,  and  every  other  class  from  1838  to  1889, 
inclusive,  while  a  year  later  still,  on  June  15,  1890,  the  total  membership 
had  mounted  to  1,390  members,  representing  49  states  and  territories,  the 
Dominion  of  Canada,  and  four  foreign  countries,  and  comprising  the 
names  of  nearly  one  half  of  the  entire  number  of  graduates  and  former 
students  of  the  Law  School  then  known  to  be  living.  By  Jan.  i,  1891, 
the  membership  increased  to  1,612;  so  that  in  a  little  more  than  four  years 
since  its  birth  the  membership  of  the  Association  rose  from  558  to  1,612, 
a  growth  of  288  per  cent.  This  increase  was  largely  due  to  the  zeal  and 
efforts  of  corresponding  secretaries  of  the  Association  in  40  states  and 
territories,  and  the  Dominion  of  Canada,  who  had  been  appointed  by  the 
Council  to  represent  and  promote  the  interests  of  the  Association  in  their 
respective  localities.  But  this  was  not  all.  The  third  annual  report, 
issued  June  15,  1890,  announced  an  anonymous  gift  of  $600  from  a  mem- 
ber of  the  Association  to  defray  the  expense  of  sending  the  Harvard  Laiv 
Review  for  the  year  1890-91  to  all  members  of  the  Association  not  already 
subscribers,  and  to  various  public  and  law  libraries,  with  the  gratifying 
result  of  increasing  the  number  of  subscribers  to  the  Review  from  500  to 
810,  and  its  reserve  funds  from  $250  to  $1,250.  This  gift  helped  the 
Review  forward  on  a  career  of  success  and  distinction  which  it  has  since 
uninterruptedly  maintained  and  improved.  The  report  also  announced 
the  generous  gift  from  another  member  of  the  Association,  of  $1,000  per 
year  for  a  period  of  five  years,  to  defray  the  expense  of  a  Course  of 
Instruction  in  Massachusetts  Law,  beginning  with  the  academic  year  of 
1800-91. 

With  this  record  of  accomplishment  of  the  Law  School,  the  Law 
Review,  and  itself,  the  Association  once  more  met  in  Cambridge,  on  June 


548  HARVARD  LAW  SCHOOL. 

23,  1891.  An  oration  in  Sanders  Theatre  by  George  Tucker  Bispham, 
Professor  of  Equity  Jurisprudence  in  the  University  of  Pennsylvania,  was 
followed  by  a  dinner  in  the  Massachusetts  Hall,  attended  by  several  hun- 
dred members  of  the  Association,  where  interesting  addresses  were  made 
by  C.  J.  Bonaparte,  /'74,  the  presiding  officer  of  the  day;  President  Eliot; 
Dean  C.  C.  Langdell,  /'53 ;  Prof.  Jeremiah  Smith,  L.  S.  '61 ;  O.  D.  Baker, 
/'72;  Albert  Stickey,  /'62;  G.  O.  Shattuck,  l'S4;  and  F.  W.  Hackett,  L.  S. 
'66.  As  before  a  full  stenographic  report  of  the  oration  and  dinner  ad- 
dresses was  printed  in  the  Boston  Post  of  the  following  day,  and  mailed 
to  all  members  of  the  Association. 

During  this  year  (1891)  the  Council  completed  the  publication  and 
distribution  of  a  handsome  Catalogue  of  the  members  of  the  Association, 
containing  an  alphabetical  list  of  its  members,  a  list  by  classes,  and  a  list 
arranged  according  to  the  states  and  cities  or  towns  in  which  members 
resided,  to  which  were  added  the  Constitution  and  list  of  officers,  and  pic- 
tures of  Dane  Hall  and  Austin  Hall,  the  old  and  new  homes  of  the 
Harvard  Law  School. 

The  Association  also  contributed  from  its  funds  during  this  year  (1891) 
the  sum  of  $609.25,  towards  the  expense  incurred  by  the  Law  School  in 
publishing  its  second  Quinquennial  Catalogue,  in  return  for  which  the 
names  of  all  members  of  the  Association  in  the  geographical  list  of  the 
Catalogue  were  printed  in  small  capitals,  a  practice  followed  in  all  subse- 
quent issues  of  the  Catalogue,  whereby  the  Association  was  henceforth 
relieved  of  the  expense  of  printing  and  distributing  a  Catalogue  of  its  own. 
Thus  the  Law  School  made  a  substantial  contribution  towards  the  work 
of  the  Association  on  its  behalf.  And  in  future  issues  of  the  Quinquennial 
Catalogue  the  Law  School  generously  assumed  the  entire  expense,  in- 
cluding that  of  a  gratuitous  distribution  of  the  Catalogue  to  all  members 
of  the  Association. 

On  Jan.  I,  1892,  five  years  after  its  organization,  the  Association  num- 
bered i ,66 1  members,  representing  every  class  from  1829  to  1891,  inclusive 
(except  the  classes  of  1826,  1827,  1828,  and  1830),  and  44  states  and 
territories,  Canada,  and  five  foreign  countries.  Its  life  membership  roll 
numbered  86,  to  be  erected  before  the  end  of  another  year  to  144.  With  all 
its  expenses  of  the  past  five  years  paid,  including  its  gifts  to  the  Law 
School  and  the  Law  Review,  the  cost  of  its  celebrations  and  the  printing 
of  its  Memorial  Reports  and  Catalogue,  there  remained  in  the  treasury 
of  the  Association  a  balance  of  $1,332.84. 

In  the  following  year,  1893,  the  Council  raised  by  voluntary  subscrip- 
tions from  members  and  from  students  in  the  Law  School  the  sum  of 
$1,517  for  an  oil  portrait  of  Dean  Langdell,  which  was  painted  by  Mr. 
F.  P.  Vinton,  and  presented  to  the  School  as  the  gift  of  the  Association. 
The  portrait  proved  to  be  a  striking  likeness,  as  well  as  an  artistic  por- 
trait, of  the  Dean,  and  elicited  much  approval  from  the  graduates  of  the 
School.  That  all  members  of  the  Association  might  be  informed  of,  and 
interested  in,  this  gift  to  the  Law  School,  the  portrait  was  reproduced 
in  photogravure  in  the  Harvard  Law  Review,  and  a  copy  sent  to  each 
member,  at  the  expense  of  the  Association. 


LAW  SCHOOL  ASSOCIATION.  549 

The  Council  during  this  year  (1893)  appropriated  from  its  current 
income,  and  paid  over  to  the  Law  School,  the  sum  of  $  1,000  to  establish 
a  Course  in  the  Conflict  of  Laws  for  the  academic  year  of  1893-94,  ar|d 
closed  its  financial  year  after  these  various  disbursements  with  a  surplus 
of  $3,461.63,  of  which  the  Life  Membership  Fund,  now  set  apart  and  ac- 
counted for  separately,  amounted  to  $2,806.20,  and  a  total  membership 
of  1,684  members. 

The  year  1895  (June  23)  was  marked  by  a  distinguished  event  in  the 
life  and  history  of  the  Law  School  and  the  Association.  Dean  Langdell 
completed  25  years  of  service  as  Dean  of  the  School,  and  the  Association 
celebrated  this  memorable  anniversary  by  the  greatest  meeting  in  its  his- 
tory. Nearly  600  of  its  members  gathered  in  Cambridge,  to  listen  to  a 
scholarly  oration  in  Sanders  Theatre  by  Sir  Frederick  Pollock,  Corpus 
Professor  of  Jurisprudence  in  the  University  of  Oxford,  and  afterwards 
to  dine  together  at  the  Hemenway  Gymnasium,  where  addresses  were 
made  by  President  Carter,  /'53;  Dean  Langdell,  7*53;  Sir  Frederick  Pol- 
lock; Judge  Horace  Gray,  ^49,  and  Judge  H.  B.  Brown,  L.  S.  '59,  of  the 
Supreme  Court  of  the  Uninted  States;  Judge  O.  W.  Holmes,  /'66,  of  the 
Supreme  Judicial  Court  of  Massachusetts;  J.  H.  Choate,  T'54;  Hon.  Sini- 
chiro  Kurino,  /'8i,  the  Japanese  Minister;  President  C.  W.  Eliot;  C.  J. 
Bonaparte,  ['74;  Prof.  W.  A.  Keener,  /'77,  of  the  Columbia  Law  School 
of  New  York;  and  G.  H.  Wald,  /'75.  Responding  to  the  toast  given  in 
his  honor  at  this  dinner,  Dean  Langdell  gave  a  brief  but  memorable 
account  of  his  work  at  the  School.  (This  address  was  printed  in  full  on 
page  41  of  the  Harvard  Graduates'  Magazine  for  September,  1895). 

During  this  memorable  year  the  prosperity  of  the  Association  advanced 
still  further.  The  membership  increased  to  1863,  the  life  membership  to 
432,  and  this  in  spite  of  the  fact  that  during  the  year  the  names  of  199 
members  were  dropped  from  the  membership  roll,  who  had  paid  no  dues 
since  1891  nor  manifested  any  interest  in  the  Association  or  its  objects. 
The  Treasury  balance,  even  after  paying  the  extraordinary  expense  of  the 
year,  rose  to  $6,691.03,  of  which  the  Life  Membership  Fund  amounted  to 
$5,633.63.  A  year  later  the  Life  Membership  Fund  had  reached  the  sum 
of  $7,056.11,  while  the  unappropriated  balance  in  the  Treasury  was 
$404.03. 

In  1896  the  Association  printed  and  distributed  among  its  members 
a  beautiful  memorial  Report  of  the  Langdell  Celebration,  at  a  cost  of 
$1,361.58.  This  year  (1896)  marked  the  voluntary  retirement  from  the 
presidency  of  the  Association  of  J.  C.  Carter,  /'53,  its  first  president,  after 
a  faithful  and  loyal  service  of  ten  years,  and  the  election  in  his  place  of 
J.  H.  Choate,  /'54. 

The  life  of  the  Association,  after  its  great  celebration  of  1895,  was  un~ 
marked  by  any  important  or  striking  event  for  a  period  of  nine  years,  but 
its  numbers  and  vitality  steadily  increased,  and  the  stream  of  its  good 
work  flowed  quietly  on.  In  1898  it  contributed  to  the  Law  School  the 
sum  of  $600  to  provide  a  course  of  lectures  by  Prof.  A.  V.  Dicey  of 
England,  which  were  given  at  the  Law  School  during  the  academic  year 
of  1898-99,  and  it  printed  and  distributed  these  lectures  to  all  its  mem- 


550  HARVARD  LAW  SCHOOL. 

bers  through  the  medium  of  the  Harvard  Law  Review  at  a  cost  of  $300.60. 
In  1902,  through  a  committee  of  graduates  of  the  Law  School,  it  raised 
the  sum  of  $1,418.27  for  an  oil  portrait  of  Prof.  James  B.  Thayer,  by 
Lockwood,  which  was  formally  presented  to  the  School  on  the  occasion 
of  the  celebration  of  1904.  As  the  cost  of  the  portrait  with  the  frame 
was  $i,575,  the  deficit  of  $156.73  was  paid  from  the  general  funds  of  the 
Association. 

In  1904  (June  28)  came  another  day  of  celebration  and  reunion  by  the 
members  of  the  Association.  From  far  and  near  they  gathered  in  Cam- 
bridge to  the  number  of  nearly  500,  and  marching  in  procession  to  Sanders 
Theatre  listened  to  an  oration  by  the  Secretary  of  War,  W.  H.  Taft,  on 
the  Problem  of  the  Philippines,  and  afterwards  dined  at  the  Harvard 
Union  and  listened  to  addresses  by  Chief  Justice  M.  W.  Fuller,  L.  S.  '55, 
of  the  Supreme  Court  of  the  United  States,  the  newly  elected  president  of 
the  Association ;  Secretary  Taft ;  President  Eliot ;  Dean  J.  B.  Ames,  /'72 ; 
Chief  Justice  M.  P.  Knowlton,  of  the  Supreme  Judicial  Court  of  Massa- 
chusetts ;  Richard  Olney,  /'58 ;  Baron  Kentaro  Kaneko,  ^78 ;  J.  D.  Long,  L. 
S.  '61 ;  Judge  F.  J.  Swayze,  L.  S.  '81 ;  W.  H.  Rand,  /'QI  ;  and  B.  H.  Lee,  /'88. 

A  very  handsome  Report  of  this  great  meeting,  the  second  largest  and 
most  successful  in  the  history  of  the  Association,  containing  the  oration 
of  Secretary  Taft  and  the  addresses  at  the  dinner,  was  subsequently 
issued  and  distributed  to  members  at  a  cost  of  $1,404.88.  The  celebration 
was  accompanied  by  a  very  large  increase  in  the  membership  of  the  Asso- 
ciation, amounting  to  480  annual  members  and  115  life  members,  thereby 
enabling  the  Association  to  meet  without  burden  the  extraordinary  ex- 
penses of  the  occasion,  without  intrenching  upon  its  steadily  increasing 
Life  Membership  Fund.  The  Treasurer's  Report,  presented  in  June, 
1906,  and  including  the  expenses  of  the  celebration  of  1904,  showed  that 
the  Association  in  the  20  years  of  its  life  had  accumulated  a  life  member- 
ship fund,  never  encroached  upon,  of  $10,568.81,  invested  in  mortgages 
and  savings  banks,  with  a  balance  of  unappropriated  income  of  $1,282,24, 
while  from  a  membership  of  558  in  April,  1887,  a  few  months  after  its 
organization,  it  had  grown  in  its  2Oth  year  (Feb.  14,  1906)  to  a  member- 
ship of  2,158  (of  which  737  are  life  members),  representing  40  per  cent, 
of  .the  roll  of  living  graduates  and  former  members  of  the  Harvard  Law 
School.  In  these  20  years  it  expended  $7,379.60  for  the  current  expenses 
of  maintaining  its  organization  and  increasing  its  membership  and  pros- 
perity, $5,271.48  for  its  Memorial  Celebrations,  $4,725.18  for  printing  and 
distributing  its  Catalogue  and  Memorial  Reports,  while  out  of  its  surplus 
income  and  the  generous  contributions  of  its  members  it  was  able  to  give 
to  the  Harvard  Law  School  $7,231  for  lectures,  for  prizes,  for  the  portraits 
of  Dean  Langdell  and  Professor  Thayer,  and  $1,649.15  to  the  Harvard  Law 
Re-view  to  promote  its  circulation  and  success. 

On  May  10,  1905,  an  important  report  was  presented  to  the  Council  by 
a  committee  consisting  of  C.  S.  Rackenmann,  L.  S.  '81 ;  W.  H.  Wade,  /'84 ; 
and  R.  L.  Raymond,  /'98,  suggesting  various  uses  of  the  surplus  funds  of 
the  Association,  which  had  accumulated  during  the  past  19  years,  for  the 
benefit  of  the  Law  School,  and  after  a  full  discussion  of  these  various 


LAW  SCHOOL  ASSOCIATION.  551 

uses,  the  Council  voted  to  invite  Professors  J.  C.  Gray  and  Jeremiah 
Smith  to  sit  for  their  portraits,  to  be  later  presented  by  the  Association 
to  the  Law  School.  Subsequently  Mr.  F.  P.  Vinton  was  invited  to  paint 
the  portraits,  and  accepted  the  commission.  He  has  already  painted  the 
portrait  of  Dean  Langdell,  now  in  the  Law  School. 

The  Council  further  voted  to  equip  and  maintain  a  handsome  and 
comfortable  reading  and  lounging-room  for  the  use  of  the  students  in  the 
Law  School,  to  occupy  some  part  of  the  new  addition  to  the  School  when 
it  should  be  built,  but  action  upon  this  gift  was  subsequently  suspended 
because  of  changes  in  the  plans  of  the  additions,  which  for  the  present 
would  not  admit  of  sufficient  space  being  set  aside  for  the  reading-room 
contemplated. 


GENERAL  INDEX. 


Adams,  Brooks,   as  Instructor,   II,   431. 

Adams,  Edward  B..  as  Lecturer,  II, 
476. 

Adams,  John,  his  law  course,  I,  136 ; 
his  admission  to  the  bar,  54 ;  his 
life,  52. 

Adams,  John    C.,    Instructor,    II,    96. 

Adams,  John  Quincy,  as  a  law  stu- 
dent, I,  135;  his  opinion  of  Coke, 
141;  his  law  course,  144;  life  of, 
264 ;  argues  U.  S.  v.  Amistad,  II, 
14. 

Alexander,  James.  I.  90. 

Allen,  Frederick  H.,  life  of,  II,  129; 
appointed  University  Professor. 

Alvord,  James  C.,  life  of,  I.  484-485 ; 
serves  as  Instructor  at  Law  School, 
484. 

American  Bar  Association,  II,  503-510. 

Ames,   Fisher,   I.    253. 

Ames,  James  Barr,  appointed  Ass. 
Professor,  II,  388;  appointed  Pro- 
fessor, 404 ;  as  Bussey  Professor, 
413;  appointed  Dean,  452;  as  Dane 
Professor,  476. 

Ames,  Samuel,  II,  230  ;  considered  for 
Dane  Professor,  124. 

Anderson,  Robert  B.,  as  Ass.  Librar- 
ian, II,  478. 

Anti-Slavery,  movement  begun,  I.  502  ; 
conditions  in  Boston,  II,  156-161 ; 

Arnold,   George    A.,    II,    494. 

Arnold,  John  H.,  appointed  Librarian 
and  life  of,  II.  386-387. 

Ashburton,  Lord,    II,    15-16. 

Ashmun,  John  Hooker,  life  of,  I,  424- 
426  ;  appointed  Royall  Professor, 
423 ;  methods  of  instruction,  435 ; 
his  relations  with  Story  and  with 
his  pupils,  450-451  ;  death  of,  459. 

Assembly,    The,    II,    204-208 ;    290-292. 

Atkinson,  Theodore,  I.  59  ;  gift  to  Li- 
brary, 371. 

Attorney  Generals,  of  U.  S.,  1789-1815, 
I.  229 ;  duties  of  office,  377-378 ; 
1830-1860.  II,  227. 

Austin,  Benjamin,  I,  191 ;  suggests 
law  professors,  I,  284 ;  connection 
with  Selfridge  murder  trial,  I,  293. 

Austin,  Edward,    life    of,    II,    436. 

Austin,   James  T.,   II,   225. 

Austin  Hall,  II,  432-438,  446  ;  changes 
in,  475. 

Bank    of   U.    S.,    large   litigant,    I,    387. 

Bankruptcy    Law,    II.    248. 

Barristers,   in   Massachusetts,  I,   55-57 ; 

American,    I,    151. 
Bar.  Admission    to,    of    J.    Adams,    I, 

54;    in    Vermont,    I,    159;    in    other 

states,    160. 
Bar  Association,    in   Mass..    I,    56,    161- 

162:   in   N.   H.,  I.   fi3.   159;   in  N.  Y., 

I,   92  :   records  of  Suffolk  County,  I, 

155-159;    American.    II.    506. 
Barnes,  Charles    B.,    II.    463. 
Barnes,  Charles  W.,   II.    431. 
Batture  Case,   I.   235,   237. 
Beale,  Joseph    H.,   Jr.,   as   Lecturer,   II, 

445,  447;  Ass.  Professor  and  life  of, 


448  ;  as  Professor,  463 ;  as  Bussey 
Professor,  476,  515;  at  Chicago  Uni- 
versity, 476,  509. 

Belden,  C.   F.   D.,   II,   467,   476. 

Bemis,  George,  life  and  bequest  of, 
II,  408,  409. 

Bemis  Professorship,  founded,  II,  408 ; 
Stroebel  appointed,  464. 

Bennett,  Edmund  H.,  as  Lecturer,  II, 
362,  370. 

Bigelow,   Harry   A.,    II,    467. 

Binney,  Horace,  his  law  course,  I,  145  ; 
life  of,  105. 

Blackstone,  William,  his  commentaries, 
I,  141-144. 

Body  of   Liberties,   I,    9,    10,    11,   20. 

Bradley,  Charles  S.,  as  Lecturer,  II, 
362,  370,  384,  386;  appointed  Bussey 
Professor  and  life  of,  403  ;  resigna- 
tion, 410. 

Brandeis,   Louis  D.,   II,   431. 

Brannan,  Joseph  D.,  elected  Professor 
and  life  of,  II,  464. 

Brattle  House,    II,     220-224,    353. 

Brewster,  Frank,  II,  446,  447,  448, 
452. 

Burr,   Aaron,   I,   95,   96  ;   his  trial,   232. 

Bussey,  Benjamin,  life  and  will  of,  II, 
20-21;  disposition  of  funds,  283-285. 

Bussey  Professorship,  founded,  II,  285  ; 
C.  S.  Bradley,  appointed,  403  ;  Ames 
appointed,  404  ;  J.  H.  Beale  appoint- 
ed, 476,  515. 

Bussey  Scholarships,  II,  376. 

Byrne,  James,  II,  448. 

Cambridge  in   1817,  I,  316-327. 

Campbell,  Lord,  his  law  student's  life, 
I,  122. 

Carter,  James  C.,  founds  Professor- 
ship, II,  479. 

Case  System,  what  it  is,  II,  419-427; 
introduction  of  372;  final  adoption 
by  Prof.  Thayer,  449;  influence  of, 
497-514. 

Catalogues,  of  Law  Library,  I,  375; 
If,  78-79,  332,  335.  of  Harvard  Col- 
lege, I,  328,  II,  93;  of  Law  School, 
442. 

Chaplin,  Heman  W..  II,  443,  444,  445. 

Chase,   Salmon  P.,  II,   226,   230,  259. 

Chase.  Samuel.  I,  77;  his  decision  on 
Federal  Common  Law,  I.  196,  197. 

Choate,  Rufus,  at  Law  School.  I.  341; 
address  at  Law  School  Festival,  II, 
3P1:  considered  for  Dane  Professor, 
122;  his  powers  as  a  lawyer,  122; 
his  famous  cases  and  the  law 
students.  123:  orator  at  Story  Ass., 
172:  and  Webster  case,  163:  and 
Anthony  Burns  case,  192:  death  of, 
216:  life  of,  225. 

Circuit  Courts  of  U.  S..  first,  I,  215- 
218:  first  reports  of,  380. 

Civil  War.   law  students   in.   II.   300. 

Clay.  Henry.  I,  87;  law  professor, 
177. 

Codes,  in  Massachusetts  in  17th  Cent., 
I.  9.  10:  in  Connecticut,  20;  In 
Rhode  Island.  22;  movement  for 


(553) 


554 


HARVARD  LAW  SCHOOL. 


1830-1836,  502-503;  in  the  United 
States  1830-1860,  II,  258. 

Coke,  Sir  Edward,  I,  32  ;  his  Institutes 
as  studied  by  law  students,  138- 
142;  Jefferson's  opinion  of,  139; 
Eldon  on,  139;  Story  and  Webster 
on,  140-141. 

College  Graduates,  lawyers  as,  I,  153- 
155;  Mass,  judges  as,  48. 

Colleges,  in  America,  date  of  found- 
ing, I,  46. 

Commencement,  Harvard,  first  held, 
I,  494;  in  Sanders  Theatre  and  Law 
School  parts,  II,  399. 

Common  Law,  in  Mass,  in  17th  Cent., 
I,  10,  12,  24,  25;  in  Conn.,  26,  27; 
in  R.  I.,  27;  in  Maryland,  73;  in 
Virginia,  79;  in  N.  Y.,  88;  in  So. 
Car.,  109;  prejudice  against,  in  U. 
S.,  196-202;  Jefferson's  opinion  of, 
in  Mass.,  236;  development  of,  by 
Chief  Justice  Shaw,  II,  235. 

Conant,  Ernest  L.,   II,   452,   461. 

Connecticut,  17th  Cent,  courts  in,  I, 
20;  printed  laws  in,  20;  early  laws 
as  to  attorneys,  21;  common  law  in, 
26,  27;  18th  Cent,  courts,  67;  18th 
Cent,  lawyers,  67-69. 

Copyright  Law  in  1815-1830,  I,  411;  in 
1830-1860,  II,  248. 

Corporations,  early  law  of,  I,  241-244; 
law  as  to,  1830-1850,  II,  143-155. 

Counsellors,  distinction  between  and 
attorneys  in  Mass.,  I,  54-57;  in  N. 
Y.  and  N.  J.,  160;  before  Supreme 
Court,  215,  216. 

Courses  and  Instruction,  under 
Stearns,  I,  334,  354-356;  under  Ash- 
mun  and  Story,  434-437;  between 
1845-1869,  II,  184,  218,  299. 

Criminal   Law,   II,   256. 

Cross,  David,  his  reminiscences,  II, 
26. 

Curtis.  Benjamin  R.,  as  a  law  student, 

I,  440-441;  early  years  at  the  Bos- 
ton Bar,   499;   life  of,   II,   226;   atti- 
tude in  civil  war,  263,  278 ;  lecturer, 
386. 

Curtis,  George  T.,  as  Instructor,  II, 
109,  117. 

Cushing,  Luther  S.,  appoined  Lec- 
turer and  life  of,  II,  126;  reappoint- 
ed  in  1850,  132;  declined  University 
Professor,  185. 

Dana,  Richard  H,  enters  Law  School, 

II,  3;     relations     with     Story,     10; 
reminiscences    of    Story,    47-48;    life 
of,  225;  fugitive  slave  cases  of,  157, 
164,   166.  190-194;  Story  Association 
and.     173;     appointed     Lecturer     in 
1866,    289. 

Dane,  Nathan,  life  of,  I,  413-415, 
founds  professorship,  415-423;  gift 
of  Dane  Hall  by,  468-478;  death  of 
and  tributes  to,  505;  toasts  to  in 
1842,  II.  23. 

Dane  Hall,  I.  468-478;  addition  to.  II, 
30-31;  festival  in,  38-39;  alteration 
of,  383;  removal  from,  432. 

Dane  Professorship,  statutes  of.  I, 
418-421;  Greenleaf  as.  II,  101;  Par- 
sons as,  124:  Langdell  as,  359; 
Ames  as,  476. 

Dartmouth  College,  law  professorship 
at.  I,  178;  Case  of,  333-336.  383- 
386:  influence  on  corporation  law, 
II,  148. 

Degree  of  Law.  first  at  Harvard.  I. 
338-340:  reauirementp  as  to.  1833- 
45.  II.  88-89;  from  1845-1869.  345- 


346;  change  in  1871,  380;  other 
changes,  450,  468;  in  1907,  524. 

Dexter,  Franklin,  I,  264;  appointed 
Lecturer,  II,  125;  life  of  126. 

Dexter,    Samuel,   I,    261-263. 

Dicey,  Albert  V.,  as  Lecturer,  II,  466. 

Dodge,    Robert    G.,    II,    465,    471. 

Donham,    Wallace   B.,   II,    477. 

Dorr  Rebellion,  II,   19. 

Dutch,   Charles   F.,   II,    479. 

Eldon,  Lord,  his  law  studies.  I,  123, 
124;  his  opinion  of  Coke,  139. 

Eliot,  Charles  W.,  his  organizing 
student  guard  for  arsenal.  II,  269; 
elected  as  President,  354-358. 

Ellsworth,  Oliver,  I,  67;  his  law 
course,  136;  judiciary  act  of,  215; 
Chief  Justice,  221. 

Embargo,  I,   236,   239,   240. 

England,  17th  Cent,  cases  in.  I,  31, 
32;  17th  Cent,  courts,  34;  17th 
Cent,  lawyers,  35;  inns  of  court, 
37,  38;  17th  Cent,  law  course,  39; 
17th  Cent,  law  books  and  reports, 
40-45;  18th  Cent,  law,  118;  18th 
Cent,  law  books  and  reports,  119, 
120;  18th  Cent,  law  course,  120- 
125;  legal  education  in  19th  Cent., 
II,  512-513. 

English  Language,  law  reports  in,  I 
33,  119. 

Everett,  Edward,  inauguration  as  Pres. 
of  Harvard,  II,  97 ;  resigns  and 
opinion  of  Law  School,  128 :  ap- 
pointed Lecturer  in  Law  School  and 
death,  286. 

Evidence,    Law    of,    II.    257. 

Examinations,  first,  II,  364,  377 ;  for 
admission,  394. 

Fessenden,  Franklin    G.    II.    431. 
Fischer,   Frederic   L.   II,   476. 
Fish,  Frederick    P.    II,    447,    448. 
Follen,  Charles,   as  lecturer,   I.   493. 
Fremont,  John  C.,  visit  to  Law  School, 
II,    214. 

Gardiner,  John,  I,  191 ;  gift  to  Li- 
brary, 371. 

Gas  Corporation    Law,    II.    241. 

Georgia,  early  courts  and  lawyers,  I, 
115 ;  later  18th  century  lawyers, 
118. 

Gifts,  since  1890,  II,  531;  to  Law  Li- 
brary, 483-495. 

Goodrich,  Elizur,  Law  Professor,  I, 
178. 

Gore,  Christopher,  his  law  office,  I, 
149;  life  of,  263;  gifts  to  library, 
373 

Gould,  James,  I,  181. 

Grain     Elevator   Law,    II,    242. 

Gray,  John  C.,  Jr.,  as  Lecturer,  II, 
362,  384,  386,  389;  appointed  Story 
Professor  and  life  of,  394 ;  Royall 
Professor,  515. 

Green,   Frederic,  II,  477. 

Green,  Nicholas  St.  J.,  as  lecturer,  II, 
370,  384,  386. 

Greenleaf,  Simon,  life  of,  I.  480- 
484 :  Kent's  views  of,  489 ;  inaug- 
uration of,  494 ;  his  law  practice, 
500  ;  argument  in  Bridge  Case,  527- 
535  ;  begins  his  evidence,  II.  9  ;  pub- 
lishes it,  18;  his  law  practice,  19: 
description  of  by  D.  Cross,  26 ; 
eulogy  on  Story,  41  ;  as  Dane  Pro- 
fessor, 101 ;  relieved  of  residence  in 
Cambridge,  109:  resigns,  120;  por- 
trait of.  121;  emeritus  Professor, 
122;  death  of,  122. 


INDEX. 


555 


Hall,   Sir   Mathew,   I,    32,    33. 

Hallett,    B.    P..    II,    225. 

Harvard  Alumni  Association,  dinner 
and  founding  of,  II,  22-i.M. 

Harvard  College,  lawyers  connected 
with  in  early  19th  Cent..  I,  263;  ex- 
penses of  education  at,  306 ;  Uni- 
tarianism  at,  307-310;  in  1817.  325- 
330 ;  finances  of,  359 ;  200th  anni- 
versary of,  504  ;  in  war  time,  II, 
267-280 ;  lectures  in  open  to  law 
students,  342-343. 

Harvard  College  Library,  law  books 
in,  I,  131;  transfer  of  books  to,  II, 
491. 

Harvard  Commencements,  where  held, 
I,  494. 

Harvard   Law   Association,   II,    538. 

Harvard  Law    Review,    II,    440. 

Harvard  Law  School,  the  founding  of. 
I,  302-305;  first  circular  of,  312; 
first  building  for,  314;  first  students 
at,  331;  first  decade  of,  331-368; 
estimates  for  new  building  in  1825, 
346-348  ;  new  start  under  Story  and 
Ashmun,  430-432 ;  erection  of  Dane 
Hall,  468-478;  termed  Dane  Hall 
College  wrongly,  478,  II.  219  ;  under 
Story  and  Greenleaf,  II,  1-46 ;  reg- 
ulations of,  11;  courses,  II,  84-88; 
degrees  1833-45,  88-92  ;  growth,  92  ; 
finances,  93-94  ;  recognized  as  separ- 
ate department,  126 ;  courses  in 
1848-49.  128;  system  of  instruction 
in  1849-50,  131;  in  1850-53,  184; 
in  1855-57,  217;  vote  establishing 
formal  names,  219  ;  in  the  civil  war. 
267-287  ;  condition  of  and  courses 
in  1865-1869,  297-300;  war  record, 


300 


methods  of  instruction  and  ad- 


mission requirements  1845-1869,  344- 
345  degrees,  345-346  ;  growth.  346- 
349  finances,  349-353  ;  condition  in 
1869,  358;  changes  in  methods  1870- 
71,  364-378  ;  during  period  1871-1881, 
379-  ;  women  in,  385;  admission 
examinations,  394 ;  three  years' 
course,  398  ;  honor  course,  407 ;  ad- 
mission examinations  for  non-grad- 
uates, 447  ;  division  of  classes  into 
sections,  448,  466,  471  ;  as  a  gradu- 
ate school,  450,  468 ;  restriction  of 
Harvard  Seniors,  468-469  ;  influence 
of,  496-514;  students  of  1862,  517; 
in  Spanish  war,  519;  conditions, 
1870-1907,  520. 

Harvard  Law  School  Association,  II, 
439,  545. 

Harvard  Law  School  Library,  from 
1817-1829,  I,  371-376;  first  cata- 
logue of,  375;  from  1829-1833,  462- 
468;  use  of  in  Vidal  case,  II,  31; 
from  1833-1845.  77;  catalogue  of 
by  Sumner,  78-79;  from  1845-1869, 
332-341;  from  1869-1907,  483-495. 

Hayes,  R.  B.,  reminiscences  of,  II, 
49. 

Hoffman,  David,  law  professor,  I,  179; 
life  of.  379. 

Hollis,   Samuel   H.,   II,    478,    479. 

Holmes.  Nathaniel,  appointed  Royall 
Professor.  II.  294-296;  life  of,  296: 
resignation  and  death,  386. 

Holmes.  Oliver  Wendell,  as  a  law 
student,  I,  442,  445-447. 

Holmes,  Oliver  Wendell,  Jr.,  as  lec- 
turer. II,  386 :  as  New  Professor, 
428;  life  of,  430:  resignation.  431. 

Homestead    Law,    II,    253. 

Howland,   Henry,  as  Instructor,  II,  413. 

Hughes,  Charles  J.,   Jr.,    II,   476,    479. 


Huntingdon,    Francis    C..    II,    461,    462. 

Imprisonment  for  Debt,  II,  253. 
Inns  of   Court,    I,    37,    38,    121-125. 
Insolvency  Law,    II,    248. 
Insurance,    early    law    of,    I,    246 ;    law 
of    1830-1860,    II,    243-245. 

Jackson,  Andrew,  degree  of  LL.  D.  to, 

I.   485-488. 
Jackson,  Charles,  I,  263. 

Keener,  William  A.,  appointed  Assist- 
ant Professor  and  life  of,  II,  432; 
appointed  Story  Professor,  443 ;  re- 
signs, 444. 

Kent,  James,  I,  95 ;  his  law  course,  I, 
145;  law  professor,  175,  176;  his 
judicial  opinions  written,  207  ;  Story's 
early  view  of,  273 ;  visit  to  Cam- 
bridge in  1823,  344-347;  visit  to 
Law  School  in  1846,  II,  107. 

Kent,  William,  gift  from  of  Broug- 
ham's wig,  II,  9-10 ;  Royall  Profes- 
sor, 98-109;  life  of,  102;  resignation, 
108  ;  President  of  Story  Ass.  and  at 
dinner,  171. 

Kentucky,  bar  of  in  Washington,  1815- 
30.  I,  380. 

Kirkland,  John  T.  life  of,  I,  331-332  ; 
his  resignation,  362. 

Labor  Law,  II.  254. 

Langdell,  C.  C.,  as  a  student,  II,  175- 
182 ;  early  life  of,  176 ;  election  as 
Dane  Professor,  359-362  ;  election  as 
Dean,  370-371;  resignation  as  Dean, 
452:  dinner  to,  453;  as  a  teacher, 
454-459 ;  writings  of.  460 ;  resigns 
as  Dane  Professor,  469 ;  death,  479. 

Langdell  Hall,    II,    479-482. 

Langdell  Professorship,  Wambaugh 
elected  to,  II,  476. 

Lathrop,  John,  as  lecturer,  II.  384,  389. 

Law  Books,  in  England  17th  Cent.,  I, 
40-45;  in  England,  18th  Cent.,  119, 
120;  in  Mass.,  17th  Cent..  16;  in 
the  American  Colonies  prior  to  1776, 
126-128:  in  U.  S..  1789-1815,  208- 
213;  in  U.  S.  1815-1830.  407-411; 
as  to  railroad  law,  II,  141-142;  in 
U.  S.  1830-1860,  260. 

Law  Clubs,  II.  319-331. 

Law   Professorships,   I.  165-180. 

Law  Reform  in  England  in  17th  Cent. 
I,  25;  in  the  United  States.  1830- 
1860.  II,  258. 

Law  Reports,  in  England,  17th  Cent., 
I,  40-45;  in  England,  18th  Cent., 
119:  early,  in  U.  S..  203-207;  in 
States  admitted  1790-1830.  377:  in 
States  admitted  1830-1860.  II.  225. 

Law  Schools,  between  1815  and  1830, 
I,  369:  since  1830,  II.  496-497. 

Lawyers,  fame  of,  not  lasting.  I,  2 ; 
unpopularity  of,  in  England,  3; 
genial  relations  of,  in  Mass..  54, 
161-163:  education  of.  in  18th  Cent., 
131-150:  as  college  graduates.  153- 
55;  American,  with  English  educa- 
tion. 151-153;  genial  relations  of  in 
Va..  163:  in  the  Federal  Convention 
and  Signers  of  the  Declaration.  186; 
prejudice  against,  after  thp  Rev- 
olution. 186-195;  first  negro  in  U.  S. 
Sunreme  Court.  II.  ?Sfi. 

Leadiner  Cases,  English.  18th  Cent., 
I.  117. 

Lecturers,  system  of  begun.  IT.  362; 
abandoned,  391. 


556 


HARVARD  LAW  SCHOOL. 


Libraries,  Law,  in  American  Colonies, 

I,  129,    130;    first    public,    in    U.    S., 
214. 

Librarians,  Harvard  Law,  II,  334, 
384,  494. 

Library   Book   Fund,    II,    429-430. 

Library  Fund,  II,   464. 

Library,  Harvard  Law,  from  1817- 
1829,  I,  371-376;  first  catalogue  of, 
375;  from  1829-1833,  462-468;  use 
of  in  Vidal  case,  II,  31;  from  1833- 
45,  77;  catalogue  of  by  Sumner,  78- 
79;  from  1845-69,  332-341;  from 
1869-1907,  483-495. 

Lincoln,  Abraham,  his  first  law  case  on 
slavery,  II,  9 ;  first  case  in  U.  S. 
Sup.  Court,  226 ;  speech  in  Cam- 
bridge, 159. 

Litchfield  Law  School,  Georgia  law- 
yers at,  I,  116;  So.  Car.  lawyers  at, 
111;  description  of,  180-185. 

Literature,  American,  1815-1830,  I, 
411;  in  1830-1860,  II,  248. 

Lafayette,  visit  to  Cambridge.  I,  347. 

Livermore,  Samuel,  gift  of  library  to 
Law  School,  I,  490;  II,  79;  life  of, 
80. 

Locke's    Constitution,    I,    112. 

Longfellow,  H.  W.,  description  of  as 
Professor,  II,  3. 

Loring,   Charles  G.,   I,    264. 

Loring,  Edward  G.,  appointed  Lec- 
turer and  life  of,  II,  185;  appointed 
University  Professor,  187;  rejected 
by  Overseers,  189;  appointed  Lec- 
turer, 196;  rejected  199. 

Lowell,  James  Russell,  as  a  law  stu- 
dent, II,  7-8. 

Lowell,  John,  life  of,  I,  287-289. 

Maine,  17th  Cent,  lawyers,  I,  23;  18th 
Cent,  lawyers,  70. 

Mansfield,  Lord,  I,  117;  his  attention 
to  law  students,  124. 

Marshall,  John,  I,  86;  appointed  Chief 
Justice.  223;  his  work  in  the  court 
404-405;  death  of,  497-498;  his 
opinions.  II,  228. 

Married   Women   Law,   II,    255. 

Marshall    Club,    II.    321-327. 

Marshall  Day.  IT,  471. 

Maryland,  17th  Cent,  courts  in.  I,  73; 
17th  Cent,  lawyers,  74-76;  18th 
Cent,  lawyers,  76-78;  bar  of  before 
U.  S.  Supreme  Court,  226-228:  bar 
of  in  Washington,  1815-1830.  379. 

Maryland,  Univ.  of,  law  professorship 
at,  I,  179. 

Mason,  Jeremiah,  I,  63,  69 ;  sketch  of 
498-499  ;  description  of  by  D.  Cross, 

II,  28. 

Massachusetts,  lawyers  among  found- 
ers. I,  7  :  Court  of  Assistants  in,  8  ; 
earlv  codes  in,  9,  10  ;  Sunerior  Court 
in.  17  ;  early  law  books  in,  16  ;  17th 
Cent,  attornevs  in,  17 ;  witchcraft 
court  in,  I,  19  :  common  law  in,  10, 
12.  24,  25:  18th  Cent,  courts  and 
judges,  47-49:  18th  Cent,  lawyers, 
49-59 :  bar  association  in.  56 ;  bar 
of.  1789-1815,  250-265;  bar  of  in 
Washington.  1815-1830,  379. 

Middleburv  College,  law  professorship 
at,  I,  180. 

Mill  Act  Law,  II,   236-238 

Missouri,  bar  of,  in  Washington,   1815- 

Mock   Trials,'  II.    441. 
Moot,   The,    I,    161. 

Moot  Courts,  under  Stearns,  I,  334- 
354;  under  Story,  II,  70-76;  under 


Parker    and    Parsons,    185-186,    218; 
suspended.   413-414.   462. 
Morpeth,  Lord,  II,   16. 

New  Hampshire,  17th  Cent,  courts  and 
lawyers,  24 ;  18th  Cent,  courts,  59- 
62,  64;  18th  Cent,  lawyers,  60,  62, 
63  ;  as  bar  association  in,  63  ;  early 
19th  cent,  lawyers,  64. 

New  Jersey,  early  judges  in,  I,  107 ; 
18th  Cent,  lawyers,  108 ;  sergeants 
in;  108. 

New    Professorship,    founded,    II,    428; 

0.  W.    Holmes,    Jr.,    appointed,    428 ; 
Thayer    appointed,    515. 

Newspapers,  early  in  America,  I,  46. 

New  York,  early  laws  in,  I,  88  ;  early 
courts  and  judges,  88-89  ;  early  law- 
yers, 89-91 ;  bar  association  in,  92  ; 
later  18th  Cent,  lawyers,  92-98  ;  non- 
college  education  of  lawyers  in,  154  ; 
bar  of  in  Washington,  1815-1830, 
379. 

North  Carolina,  early  courts  and  law- 
yers, I,  112,  113;  18th  Cent,  lawyers, 
113,  114. 

Ohio,    bar   of    in   Washington,    1815-30, 

1,  380. 

Olson,   Clarence  H.,   II,   478. 

Parker,  Isaac,  life  of,  I,  292-296  ;  his 
inaugural  address,  299-302;  his  lec- 
tures, 303  ;  resignation  of,  358  ;  death 
Of,  447. 

Parker,  Joel,  as  Royall  Professor,  II, 
113  ;  life  of,  114-117  ;  portrait  paint- 
ed, 174 ;  delegate  to  Convention  of 
1853,  184;  as  Commissioner  to  re- 
vise statutes,  200;  speeches  in  1856, 
209-212  ;  papers  on  Personal  Liberty 
Laws,  262-264;  his  attitude  and 
speeches  on  the  war,  274-281 ;  on 
reconstruction,  289  ;  resignation  and 
after  life,  293 ;  reminiscences  of, 
302-311 ;  pamphlet  on  Law  School, 
302,  366. 

Parliament,  The,  II,  204-208;    290-292. 

Parsons,  Theophilus,  his  law  office,  I, 
135,  144  ;  his  study  of  Coke,  139  ;  his 
law  library,  213;  life  of,  255-261; 
offered  first  Harvard  law  professor- 
ship, 284  ;  sale  of  law  library,  372. 

Parsons,  Theophilus,  Jr.,  elected  Dane 
Professor,  II,  124;  life  of,  124-125; 
portrait  painted,  174  ;  author  of  Con- 
tracts, 177-178;  interest  in  student 
guard  for  arsenal,  269  ;  his  attitude 
to  the  war,  274-281 ;  on  reconstruc- 
tion, 288  ;  reminiscences  of,  304-307, 
311-313;  resignation  and  after  life 
and  writings,  359. 

Patents,  early  law  of,  I,  246  ;  law  of, 
1830-1860,  II,  246-248. 

Peabody,  William  R.,  II,  472,  476,  477. 

Pennsylvania,  first  courts  in,  I,  98; 
early  judges,  99 ;  early  laws,  100 ; 
early  lawyers,  101-103;  18th  Cent, 
lawyers,  103-105;  early  19th  Cent, 
lawyers,  105 ;  bar  of,  before  U.  S. 
Supreme  Court,  220,  221,  225;  bar 
of  in  Washington,  1815-1830,  379. 

Personal  Liberty  Laws,  II,   262-264. 

Piracy,  Law  of,  I,   389-391. 

Plymouth  Colony,  lawyers  and  courts 
in,  I,  7. 

Pow-Wow  Law  Club,   II,  328-331. 

Prescott,   James,    trial   of,    I,    343. 

Prince,  Thomas,  his  law  library,  I, 
130. 

Princeton  College,  law  lectures  at,  I, 
178. 


INDEX. 


557 


Prize  Dissertations,  II,  130 ;    abolished, 

376  ;    winners,   533. 
Prize    Law,    I,    240-242. 
Property    Qualifications,    abolition    of, 

II,    234. 

Quincy,  Josiah,  election  as  President  of 
Harvard,  I,  363. 

Railroad  law,  II.  133-141  ;  law  books 
as  to,  141-142 ;  law  of  torts  con- 
nected with,  238-239. 

Reeve,  Tapping,  I,  180,  181. 

Regulations,    Law   School,   II,    11 ;    339. 

Rhode  Island,  17th  Cent,  courts  in,  I, 
22 ;  early  law  books  in,  23 ;  early 
laws  as  to  attorneys,  23 ;  common 
law  in,  27  ;  18th  Cent,  courts  and 
lawyers,  66. 

Rounds,    Arthur   C.,    II,    465,    471. 

Royall,  Isaac,  life  of,  I,  278-282;  will 
of,  I.  281. 

Royall  Professor,  election  of  first,  I, 
2"90 ;  election  of  J.  Parker,  291 ; 
statutes  of,  297;  offered  to  Story, 
359;  statutes  of,  amended.  427, 
Ashmun  elected,  423;  Kent  as,  II, 
101;  statutes  of,  amended,  101;  Joel 
Parker  as,  113;  Nathaniel  Holmes 
as,  296;  James  B.  Thayer  as,  389; 
Gray  as,  515. 

Schofield,  William,  II,  443,  444,  445. 

Scholarships,  first  founded,  II,  376. 

Serjeants,  in  New  Jersey,  I,  108;  in 
the  First  Circuit  Court  of  the  U.  S., 
216,  217. 

Shaw,  Lemuel,  I,  264;  appointed  Chief 
Justice,  447-448;  influence  on  rail- 
road law,  II.  135-138;  development 
of  the  Common  Law  by,  235;  water- 
course and  mill  act  law  of,  236-238; 
death  of,  282. 

Slavery,  cases  in  U.  S.  Sup.  Ct.,  I, 
403-404;  early  case  in  Mass,  in 
1836.  502;  decision  of  Story  in  Prigs 
case,  II,  17;  fugitive  slave  cases  in 
Boston,  164-168;  Anthony  Burns 
case,  190-195. 

Smith,  Jeremiah,  appointed  Story 
Professor  and  life  of.  II,  444-445. 

Smith,    Jeremiah,   Jr.,    II,    479. 

Sodality,   The,   I,   161. 

South  Carolina,  early  laws  in,  I,  109  ; 
early  judges,  109;  bar  of  in  Wash- 
ington, 1815-30,  380. 

Spanish  War,   II,    463,   519. 

Special  Students,  II,  447,  449,  451, 
463,  468,  525. 

Sprague,  Rufus  W.,  II.  476.  478. 

Stackpole.  Joseph  L.,  Jr.,  II,  472. 

States,  new  admitted.  I,   377;  II,   225. 

Statutes,  printed  edition  in  American 
Colonies.  I,  129. 

Stearns,  Asahel,  election,  I,  307 ;  life 
of.  312.  313;  his  course  of  instruc- 
tion. 334.  354-356;  his  resignation, 
365-370. 

Stiles,  Ezra,  extracts  from  diary.  I, 
28;  suggests  law  professorship, 
165-169. 

Storrow.   James  J.,  II,   465. 

Story,  Joseph,  his  opinion  of  Coke.  I, 
140:  early  law  books.  208,  212: 
Jefferson's  opinion  of.  236;  his  Prize 
law  decisions.  241;  life  of.  266-277: 
letters  to  C.  P.  Sumner.  289;  offer- 
ed professorship  in  1820,  340;  sec- 
ond offer  in  1828.  359:  life  of,  1815- 
1830.  415-416:  made  Dane  Profess- 
or, 418-424;  urged  as  Chief  Justice 


of  Mass.,  447;  writes  Bailments, 
451;  writes  Com.  on  Constitution, 
456 ;  attachment  of  pupils  to,  458 ; 
writes  Conflict  of  Laws,  492;  his 
Equity  Jurisprudence,  501;  his 
Equity  Pleadings,  II,  3;  his  Part- 
nership, 15;  his  Bills,  25;  descrip- 
tion of,  by  D.  Cross,  26;  suggested 
for  Pres.  of  Harvard,  35;  resigna- 
tion from  Bench,  34-37;  death,  40; 
his  will,  43-44 ;  Committee  Report 
on  a  memorial,  44-46;  reminiscenses 
of,  47-66;  as  an  international  jurist, 
66-70;  contest  with  C.  J.  Joel  Park- 
er, 116-117. 

Story    Association,    II.    168-174. 

Story  Professorship,  founded,  II,  394; 
John  C.  Gray,  Jr.,  appointed,  394; 
W.  A.  Keener  appointed,  443 ;  Jere- 
miah Smith  appointed,  444. 

Street  Railway,  first  in  Cambridge, 
II  212;  law  of  241. 

Strobel,  Edward  H..  appointed  Bemis 
Professor  and  life  of,  II,  464;  in 
Siam,  477. 

Supreme  Court  of  U.  S.,  founded,  I, 
215;  early  years  of,  215-222;  bar  of 
jn  early  years,  224-229;  bar  of  1815- 
1830,  377-380;  sale  of  reports  of. 
381;  attacks  on.  391-393;  influence 
of  Marshall,  404-407,  448;  changes 
in.  380;  changes  in  1830-1860,  II, 
227;  bar  of,  225-227;  cases  in,  227- 
233. 

Sweetnam,  John,  II,  317. 

Swift,  Henry  W.,  II,  465. 

Sumner,  Charles,  as  a  law  student,  I, 
452-454;  becomes  Law  Librarian, 
477;  Instructor  in  1835.  495;  his 
relations  with  Greenleaf,  499-500; 
Instructor  in  1836,  501;  desired  by 
Greenleaf  as  Professor,  II,  9;  In- 
structor in  1840,  11;  Instructor  in 
1843,  25;  description  of  as  an  In- 
structor, 26;  law  librarian  cata- 
loguer, 78-79;  Instructor  in  1845, 
96;  suggested  as  Royall  Prof.,  98, 
110;  elected  Senator,  167. 

Taney,  Roger  B..  his  law  course,  I, 
146;  life  of,  379:  appointed  to  Su- 
preme Court,  489;  appointed  Chief 
Justice,  498;  influence  of.  upon  the 
law,  II,  228-230;  death.  286. 

Telegraph  Law,  II.  240,  247. 

Tennessee,  bar  of  in  Washington, 
1815-30.  I,  380. 

Thayer,  Ezra  R..  II,  463,  467.  472. 

Thayer,  James  B..  appointed  Royall 
Professor,  II,  389;  appointed  Weld 
Professor,  515;  death  and  tributes 
to,  472-475. 

Thayer  Law   Club,   II.   330. 

Thomas,  Benjamin  F.,  as  lecturer,  II, 
384,  386. 

Town  and  Gown  riots,  II,  11-12. 

Torrey,  Henry  W..  lecturer  on  Inter- 
national Law,  II,  442. 

Torts,  early  law  of,  I.  246;  early  law 
of  in  U.  S.,  II,  238  et  seq :  first 
taught  in  the  Law  School,  376. 

Trademark  Law,   II,    247. 

Transylvania  University,  law  school 
at.  I,  177. 

Tucker,  St.  George.  I,  87;  law  pro- 
fessor, publishes  Blackstone,  172. 

Tuition  fee,   change   in,   II,   382. 

Fnitarianism,    at    Harvard.    I.    309-312. 

University      Professorship      of      Law. 

statutes  of  and  established.  I,  303; 


558 


HARVARD  LAW  SCHOOL. 


newly  established  in  1849,  II,  129; 
in  1853,  II,  187;  statutes  of  in  1856, 
201. 

Vermont,  18th  Cent,  courts  and  law- 
yers, I,  60. 

Villard,  Henry,  and  Library  Book 
Fund,  II,  430. 

Virginia,  early  printed  laws,  I,  80 ; 
early  courts,  80,  81  ;  early  laws  as 
to  attornies,  81-83 ;  early  lawyers, 
83-84;  later  18th  Cent,  lawyers,  84- 
87 ;  bar  of  before  early  U.  S.  Su- 
preme Court,  228  ;  bar  of  in  Wash- 
ington, 1815-1830,  379. 

Wambaugh,  Eugene,  appointed  Profes- 
sor and  life  of,  II,  448. 

Warner,   Joseph   B.,    II,    442. 

Warren,  Edward  H.,  as  Ass.  Professor, 
II,  478. 

Washburn,  Emory,  student  at  Law 
School,  I,  339 ;  appointed  Lecturer, 
II,  200 ;  as  University  Professor, 
201;  life  of,  202-204;  address  to 
students  at  opening  of  war,  265 ; 
appointed  Bussey  Professor,  285 ; 
reminiscences  of,  304-307,  313-317 ; 
resignation,  401-403  ;  books  of,  403. 

Webster,  Daniel,  I,  63 ;  his  opinion 
of  Coke,  141 ;  his  law  course,  149 ; 
his  case  vs.  T.  Lyman,  360 ;  in 
White  murder  case,  442  ;  at  Bunker 
Hill  in  1843,  II,  28;  7th  of  March 
speech,  161;  death  of,  183. 


Webster,  Prof.  John  N.,  letter  of  to 
Greenleaf,  II,  31;  murder  trial,  103. 

Weld,  William  F.,  Jr.,  founds  Profes- 
sorship and  life  of,  II,  428-430. 

Weld  Professorship,  founded,  II,  428 ; 
O.  W.  Holmes,  Jr.,  appointed,  428 ; 
J.  B.  Thayer  appointed,  515;  S. 
Williston  appointed,  476. 

Westengard,  Jens  I.,  as  Instructor,  II, 
463 ;  Ass.  Professor,  467 ;  in  Slam, 
477;  reappointed  Ass.  Professor,  478 

Wheaton,  Henry,  life  of,  II,  111-112; 
appointed  Lecturer,  111. 

William  and  Mary  College,  first  law 
professorship  at,  I,  169-172. 

Williams,  Frank  B.,  as  Instructor,  II, 
462 ;  as  Assistant  Professor,  463 ; 
resignation,  466. 

Williams,  George  Gorham,  II,  169. 

Williston,  Samuel,  appointed  Ass.  Pro- 
fessor and  life  of,  II,  445. 

Wilson,  James,  I,  104  ;  his  law  office, 
133 ;  law  professor,  172,  173. 

Wirt,  William,  his  law  course,  I,  136  ; 
as  Attorney  General,  377-378;  visit 
to  Boston,  438-439. 

Witchcraft  Court,  in  Mass.,  I,   19. 

Woman,  in  Law  School,  II,  385,  467; 
law  of  married,  255 ;  first  as  law- 
yer, I,  74. 

Wyman,  Bruce,  as  Lecturer,  II,  471, 
472,  476 ;  as  Ass.  Professor,  476. 

Wythe,  George,  first  law  professor,  I, 
169-171;  his  life,  85. 

Yale  College,  early  law  professorship 
at,  I,  165-169,  178. 


LAWYER  AND  CASE  INDEX. 


Ableman   v.   Booth,  II,    233. 
Adams,    Samuel,    I,    52. 
Addington,   Isaac,   I,    47. 
Antelope,  The,   I,   403. 
Anthony  Burns  Case,  II,    190-195. 
Atkinson,   William  King,   I,   63. 
Avery,  William,  I,   113. 

Baldwin,   Abraham,    I,    116. 

Baldwin,  Simeon,  I,  70. 

Bank  of  Augusta  v.  Earle,  II,   6,   149- 

152. 

Bank  of   U.   S.  v.   Dandridge,  I,   402. 
Bank  of  U.  S.  v.  Deveaux,  I,   229  ;    II, 

152. 

Barbour,  Philip  P.,  I.  391. 
Barradale,   Edward,   I,    84. 
Bartlett,    Ichabod,    I,    63. 
Bay,   Elihu   H.,   I,    111. 
Beardsley,  Samuel,  II,  226. 
Bell  v.  Locke,  II,   247. 
Benson,    Egbert,    I,    95. 
Berrien,   John   McPherson,   I,    116. 
Blair,   John,   I,    84. 
Blair,    Montgomery,    II,    233. 
Blake,   George,    I,    262. 
Blowers,  Sampson  Salters,  I,  52. 
Boston    Glass   Mfg.    Co.    v.    Binney,   II, 

255. 

Boston  Massacre  Case,  I,  59. 
Boyce  v.   Anderson,  I,   404. 
Bradbury,  Theophilus,  I,  53. 
Bradford,  William,   I,    104. 
Bradley,  Stephen  R.,  I,  65. 
Briscoe  v.  Bank,  II,  1,  228. 
Brown   v.   Maryland,  I,    401. 
Brown,  Ethan  Allen,  I,   389. 
Burgess,    Tristram,    I,    66. 
Burke,  Aedanus,   I,   111. 


Burrill,  James,  I,   66. 

Butler,    Benjamin   F.,    II,    226. 

Byrd,    William,    I,    84. 

Campbell,   James,   II,   227. 

Carr,    Dabney,    I,    85. 

Carroll,  Charles,  I,  76. 

Carroll,  Charles,  Jr.,  I,   78. 

Channing,    William,    I,    66. 

Charles  River  Bridge  Case,  I,  361,  507- 
543. 

Chauncey,    Charles,    I,    105. 

Cherokee  Nation  v.  Georgia,  I,   449. 

Chew,   Benjamin,   I,    103. 

Chisholm  v.   Georgia,  I,   218. 

Claggett,    Wiseman,    I,    62. 

Clifford,   John  H.,   II,    225. 

Clinton,   DeWitt,    I,   95. 

Clinton,   George,   I,   95. 

Cohens  v.    Virginia,  I,   391-393. 

Com.   v.   Aves,  I,    502. 

Com.   v.  Carlisle.  II.   255. 

Com.  v.  Hunt,  II,  19-20;    255. 

Com.  v.  Rogers,  II,  34. 

Com.  v.  Wyman,  II,  33-34. 

Cooley  v.  Port  Wardens,  II,  232. 

Craig  v.  Missouri,  I,  443. 

Crawford,  William   H..   I,   116. 

Crittenden,  John  J.,  II,   226. 

Gushing,   Caleb,    II.   225. 

Gushing,  William,  I,  53. 

• 

Daggett,  David,  I,  70. 

Dallas,  Alexander  J.,  I,  104. 

Dallas,  George  M.,  II,  227. 

Dana,    Richard,    I,    52. 

Dartmouth  College  v.  Woodward,  I, 
335-338,  383-386;  effect  of  on  cor- 
poration law,  II,  138. 


LAWYER  AND  CASK  IXDEX. 


559 


Davio.   William   R.,   I,    114. 

Davis,   John,   I,    531-536 ;     II,    225. 

Davis,    Daniel,   I,    262. 

Delancey,    James,    I,    89. 

De  Saussure,   Henry   W.,  I,   111. 

Dickerman,   Edward    M.,   II.   226. 

Dickinson,  John,  I,  103. 

Drayton,   William   Henry,   I,    110,   111. 

Dunne,   James,   I,    95. 

Dudley,    Paul,    I.    47. 

Dulany,    Daniel,  Jr.,   I,   77. 

Dulany.   Daniel,   I,   76. 

DuPonceau,   Peter  S.,  I,   105. 

Edwards,  Pierrepont,  I,  70. 
Elkinson  v.  DeLiesseline,  I,  395. 
Emmett,  T.   A.,   life  of,   241;    prejudice 
against,    I,    251. 

Farwell  v.  B.  d  W.   R.  R.  II,  19. 
Fitch,   Thomas,    I,   67. 
Fletcher,   Richard,   II.    225. 
Fletcher  v.   Peck,  I,   234. 
Foot,   Samuel   A.,   I,    379. 

Galloway,  Joseph,   I,    103. 

Genesee  Chief,  II,   232. 

Georgia  v.   Brailsford,  I,    220. 

Geyer,   H.  S.,  II,   233. 

Gibbes,    William    H.,    I,    111. 

Gibbons    v.    Ogden,    I,    348;     396-400; 

515. 

Gilpin,   Henry   D.,   II,    227. 
Goodrich,   Chauncey,   I,    70. 
Graham,    James,    I,    90. 
Gridley,  Jeremiah,  I,  51  ;    his  advice  to 

J.  Adams,  138. 
Griswold,   Mathew.   I,   68. 
Griswold,   Roger,   I,   70. 
Groves  v.  Slaughter,  II,   14. 

Haines,    C.    G.,    I,    379. 

Hall,  J.  Prescott,  I,  379. 

Hamilton,  Alexander,  I,  94,  96-98;  219, 
220. 

Hamilton,  Andrew,   I,   91,   101. 

Hawley,  Joseph,   I,   52. 

Hay  ward,   John,   I,   114. 

Henry,  Patrick,  I,  85  ;  his  law  library, 
130 ;  legal  education,  132. 

Hey  ward,  Thomas,   I,    111. 

Hicks,   Whitehead,   I,   92. 

Hoar,    Samuel,    I,    261. 

Hoffman,    Ogden,    I,    379. 

Holloway,   John,   I.    84. 

Hooper,   William,   I,    114. 

Hopkinson,  Francis,  I,  103. 

Hopkinson,  Joseph,  I,  105 ;  in  Dart- 
mouth College  case.  338. 

Horsmanden,    Daniel,   I.    90. 

Hutchinson,  Thomas.   I.   47,   49,   55. 

Hutson,   Richard,   I,    111. 

Hylton,  v.    U.    S.,  I,    219. 

Ingersoll,   Charles  J.,  I,    105. 
Ingersoll,  Jared,   I,   67. 
Ingersoll,   Jared,   Jr.,    I,    104. 
Iredell,    James,   I,    113. 

Jaffrey,   George,   I,    59. 

Jay,  John,  I,  94.  his  law  course, 
138  :  his  oninion  of  the  Supreme 
Court. 

Jefferson,  Thomas,  opinion  of  Coke,  I, 
139;  originates  first  law  professor- 
ship, 169,  170;  his  life,  85. 

Johnson,   Reverdy,   II,   226. 

Johnson,    Thomas,   I,    78. 

Johnson.   William  S.,   I,    68. 

Johnston,    Samuel,    I,    113. 

Jones,   Samuel,   I,    401. 


Jones   v.    Van    /.unit.  II,   230. 
Jones  v.   Walker.  I,   ij  1  y. 

K'-nt.    I?,  ujamin,    I,    52. 
Kirby,  Epliraim,   I,   20.V 

Lansing,    John,    I,    95. 
Lntimer  Cave,  II.   j  1. 
Laurens.    John,    I,    111. 
Lochford,  Thomas,  I,   8,   13,   14. 
Lee,  Richard   H.-nry.   I.    )6 

.    Hugh    S.,    I,    3SO;     death,    II, 

Ft. 

Leigh,   Benjamin   Watkins.   I,   379. 
Leonard,   Daniel,   I.   53. 
Leroy  v.   Tatham,  II,   247. 
Lewger,   John,    I.    74. 
Lewis,  John,   I,   85. 
Lewis,    Morgan,    I,    95. 
Lewis.  William.  I,   104. 
Lincoln,    Levi,    I,    264. 
Livermore,    Arthur,    I.    63. 
Livormore,   Mathew,   I,   62. 
Livermore,    Samuel,    I,    60. 
Livingston,    Edward.    I,    95,    II,    259. 
Livingston,   Robert  R.,   I.  95. 
Livingston,    William,    I,    92 ;    as  a   law 

student,   I,    133-135. 

Livingston,    William   Brockholst,   I,   96. 
Livingston  v.  Jefferson,  I,   235. 
Livingston  v.  Van  Ingen,  I,  238. 
Lloyd,   David,   I,   101. 
Lord,  Daniel,   II,  226. 
Louisville  R.   R.   v.  Letson,  II,   155. 
Lowell.    Judge   John.    I,    287. 
Ludlow,   Roger,    I,    20. 
Luther   v.    Borden,   II,    231. 
Lyman,    Phineas,    I,    67. 
Lynch,    Thomas,   Jr.,    I,    111. 
Lynde,   Benjamin,   I,   18,   47. 
Lynde,    Benjamin,   Jr.,   I,    47. 

Manigault,    Peter,   I,    110. 
Marberry  v.  Madison.  I,   230. 
tfaricmna    Flora,   I,    403. 
Marsh,    Charles,    I,    65. 
Marsh    v.   Billings,   II.    247. 
Martin.    Luther,    I,    226,    227. 
Martin  v.  Hunter's  lessee,  I,  381. 
Mason,  George,  I,  85. 
McCulloch,    Henry   E.,    I,    113. 
McCulloch    v.   Maryland.  I,   387. 
McKean,    Thomas,    I,    103. 
Me  Lend   Case,   II,    15. 
Minot,    William,    I.    264. 
Moore,   Alfred,   I,   114. 
Morris,   Gouverneur,   I,   94. 
Morton.    Marcus.    I.    264. 
Morton,    Perez,    I,    264. 
Morton,   Thomas,    I,    13. 
Moylan,  Jasper,  I,   105. 

Nereide.    The,    I,    _'4M. 
Kichol.   William,   I,    90. 
New  York  v.  Miln,  II,   1,   228. 
Nicholas,   Philip  X..  I.   379. 
Nicholas,  Robert  Carter.  I,  85. 
Xicholas  Bayard  Case,  I,  90. 
Norris   v.    Boston,   II,    231. 

Oakley,   T.   J.,    I,    379. 

O'Connor.  Charles,  II,  226. 

Ogden,   David,   I,   108. 

Ogden,  David  B.,  I.  379. 

Olden  v.  Sounders,  I,  401. 

Oliver.  Peter,  I.  47. 

O'ReiUi/  v.   Morse.  II,   247. 

Osborn  v.  Bank  of   U.   S..  I,   388. 

Otis,   Harrison  Gray.   I,   254. 

Otis,  Col.  James,  his  law  course,  I,  135. 

Otis,  James,  Jr.,  I,   52. 


560 


HARVARD  LAW  SCHOOL. 


Paca,  William,  I,  78. 

Paine,   Elijah,   I,  «5. 

Paine,  Robert  Treat,  I,  52. 

Parker,  William,  I,   60. 

Paxton's  Case,  I,  58. 

Pendleton,  Edmund,  I,   84. 

Penn,  John,  I,  114. 

Penn.  v.  Wheeling  and  Belmont  Bridge 

Co.,  II,    232. 

Peovle  v.  Fisher.  II,  255. 
People  v.   Freeman,  II,    257. 
Peters,   Richard,  I,   104. 
Phillips,    John,    I,    263. 
Pickering,  John,   I,   63. 
Pinckney,    Charles   C.,   I,    111. 
Pinckney,    Thomas,    I,    111. 
Pinkney,  William,  I,  227,  228  ;    defence 

of   pirates,    389-391 ;     last   case    and 

death    of,    393. 
Plumer,    William,    his    law    course,    I, 

147  ;     his   life,    63. 
Pratt,    Benjamin,    I,    52. 
Prentice,    John,    I,    63. 
Prentiss,   Sergeant  S.,  II,   226. 
Prigg  v.  Pennsylvania,  II,   17,   24,   25. 
Pringle,   John   Julian,   I,    111. 
Prise  Cases,  II,  275. 
Prouty  v.  Ruggles,  II,   246. 

Quincy,    Josiah,    Jr.,    I,    52. 
Quincy,  Samuel,  I,   52. 

Randolph,  Edmund,  I,  86 ;    U.  S.  Atty. 

Gen.,   I,    218. 

Randolph,   Sir  John,  I,   84. 
Randolph,  John,  his  law  course,  I,  145. 
Randolph,    Peyton,   I,    84. 
Rawle,   William,   I,   104. 
Read,    George,    I,    103. 
Read,    John,    I,    51. 
Read,  Joseph,  I,   104. 
Roane,    Spencer,   I,   87. 
Rogers  v.  Bradshaw,  I,  400. 
Root,   Jesse,   I,   67,    181. 
Rose  v.  Himely,  I,   240. 
Ruggles,  Timothy,   I,   52. 
Russell,  Chambers,  I,  47. 
Rutledge,  Hugh,  I,  111. 
Rutledge,   John,   I,    110 ;     letter   to   his 

brother,    151. 

Sandford  v.  Dred  Scott,  II,   214,   233. 

Scott,  John  Morin,  I,  92. 

Sedgwick,  Theodore,  I,   53. 

Sergeant,    John,    I,    105. 

Sergeant,   Thomas,   I,    105. 

Sewall,    Jonathan,    I,    52. 

Sewall,   Samuel,    I,    47. 

Sewall,  Stephen,  I,  47. 

Seward,  William  H.,   II,   226,   230,   257. 

Seymour  v.  McCormick,  II,   247. 

Shadrach  Case,  II,  164. 

Sherman,   Roger,   I,   67. 

Sherman,  Roger  M.,  I,   70. 

Shippen,    Edward,    I,    103. 

Sims   Case,  II,    165-168. 

Smith,  Jeremiah,   I,   63,   64. 

Smith,  William,  law  course  advised  by, 

I,  136  ;    his  life,  90. 
Smith,   William,   Jr.,   I,    92. 
Smith  v.    Swormstedt,  II,    233. 
Smith  v.   Turner,  II,  231. 
Smyth,    Alexander,    I,    391. 
Spencer,   Ambrose,   I.    247-248. 
Spencer,  John   C.,   II,   226,  work  on  N. 

Y.    codification,    258. 


Sprague,   Peleg,   I,    264. 

Stanberry,   Henry,  II,   226. 

Stanton,  Edwin  M.,  II,   227,   232. 

Steamboat   Thomas  Jefferson,  I,    400. 

Stiles,  Ezra,  Jr.,  his  law  course,  I,  144. 

Stimpson  v.  Bait-,  etc.,  R.  R.,  II,  247. 

Stockton,    Richard,    I,    108. 

Stone,   Thomas,   I,    78. 

Stoughton,   William,    I,    47. 

Strong,   Caleb,    I,    53. 

Sturgis  v.  Crownin shield,  I,  386. 

Sullivan,  George,  I,  63. 

Sullivan,    James,    I,    254. 

Sullivan,  John,  I,   63. 

Sullivan,  William,  I,  263. 

Sullivan    v.    Fulton    Steamboat    Co.,    I, 

397 

Swift,  Zephaniah,  I,  69. 
Swift,  v.  Tyson,  II,  18. 

Taylor  v.   Carpenter,  II,   247. 
Tazewell,  L.  W.,  I,  379. 
Thacher,    Oxenbridge,    I,    52. 
Thompson,    Smith,    I,    248. 
Thomson  v.    Winchester,  II,   247. 
Thurlow   v.    Massachusetts,  II,   230. 
Tilghman,  Edward,  I,  104. 
Tilghman,  William,  I,  104. 
Tompkins,    Daniel   O.,    I,    95. 
Trcvett  v.   Weeden,  I,  66,   190. 
Trott,  Nicholas,  I,  109. 
Troup,  Robert,   I,   95. 
Trowbridge,    Edmund,    I,    51 ;     his   law 

library,    129. 

Trumbull,    Jonathan,    I,    67. 
Tyler,    John,    I,    87. 
Tyler,   Royall,   I,   65. 
Tyson,  Job  R.,  II,  227. 

U.  S.  v.  Amistad,  II,   14. 

Van  Ness,  William  W.,  I,  96. 
Van  Schaack,  Peter,  I,  92. 
Van  Vechten,  Abraham,  I,   96. 
Varick,    Richard,    I,    95. 
Vidal.   v.  Philadelphia,  II,   31-32. 

Walker,  Robert  J.,  II,  226. 

Walton,   George,    I,    115. 

Ward,   Artemas,   I,   263. 

Waring  v.  Clarke,  II,  230. 

Ware  v.   Hylton,  I,   219. 

Wayne,    James   M.,    his   law   course,    I, 

146. 

Weare,    Meschech,    I,    60. 
Webster,    Noah,    I,    69. 
West,    Benjamin,    I,    63. 
White  murder  trial,  I,   444-445. 
Williams,  Thomas  S.,  I,  70. 
Wilson  v.  Rousseau,  II,  246. 
Winthrop,    Waite,    I,    47. 
Winthrop  v.  Lechmere,  I,  67-68. 
Wood,  George,  I,   379. 
Wolcott,    Oliver,    I,    70. 
Wolcott,    Roger,    I,    67. 
Worcester  v.   Georgia,  I,   455. 
Worthington,    John,    I,    52. 
Wragg,    William,    I,    110. 
Wright,   John   C.,   I,   388. 

Yates,    Robert,    I,    96. 
Yeates,    Jasper,   I,    104. 

Kenger  Case,  I,   90. 


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